Remedial Law Bar Q&A PDF

COVERAGE
REMEDIAL LAW
2015 BAR EXAMINATIONS
Table of Contents
I. General Principles
A. Concept of remedial law
15
B. Substantive law vis--vis remedial law
15
C. Nature of Philippine courts
15
1. Principle of judicial hierarchy
15
2. Doctrine of non-interference or doctrine of judicial stability
15
II. Jurisdiction
A. Over the parties
16
1. How jurisdiction over the plaintiff is acquired
16
2. How jurisdiction over the defendant is acquired
18
B. Over the subject matter
19
1. Error of jurisdiction as distinguished from error of judgment
19
2. How jurisdiction is conferred and determined
19
3. Objections to jurisdiction over the subject matter
19
4. Effect of estoppel on objections to jurisdiction
20
C. Over the issues
22
D. Over the res or property in litigation
22
E. Jurisdiction of courts
23
1. Supreme Court
23
2. Court of Appeals
23
3. Sandiganbayan
26
4. Regional Trial Courts
26
5. Family Courts
30
6. Metropolitan Trial Courts/Municipal Trial Courts
30
F. Over small claims; cases covered by the Rules on Summary Procedure and Barangay
conciliation
38
G. Totality Rule
40
III. Civil Procedure

A. Actions
41
1
1. Meaning of ordinary civil actions
41
2. Meaning of special civil actions
41
3. Civil actions versus special proceedings
41
4. Personal actions and real actions
41
5. Local and transitory actions
41
6. Actions in rem, in personam and quasi in rem
42
B. Cause of action
43
1. Meaning of cause of action
43
2. Right of action versus cause of action
44
3. Failure to state a cause of action
44
4. Test of the sufficiency of a cause of action
45
5. Splitting a single cause of action and its effects
46
6. Joinder and mis-joinder of causes of action
48
C. Parties to civil actions
51
1. Real parties-in-interest; indispensable parties; representatives as

parties; necessary parties; indigent parties; alternative defendants
51
2. Compulsory and Permissive Joinder of parties
51
3. Misjoinder and Non-joinder of parties
52
4. Class suit
53
5. Effect of death of party-litigant
53
D. Venue
57
1. Venue versus jurisdiction
57
2. Venue of real actions
57
3. Venue of personal actions
58
4. Venue of actions against non-residents
59
5. When the rules on venue do not apply
59
E. Pleadings
60
1. Kinds of pleadings
60
a. Complaint
60
b. Answer (Negative defenses, Negative pregnant,

Affirmative defenses)
60
c. Counterclaims (Compulsory counterclaim, Permissive counterclaim,

Effect on the counterclaim when the complaint is dismissed)
60
d. Cross-claims
64
e. Third (fourth, etc.) party complaints
65
f. Complaint-in-intervention
66
g. Reply
66
2. Pleadings allowed in small claim cases and cases covered by the Rules on
Summary Procedure
67
3. Parts of a pleading
68
a. Caption
68
b. Signature and address
68
c. Verification and certification against forum shopping
68
d. Effect of the signature of counsel in a pleading
70
4. Allegations in a pleading
71
a. Manner of making allegations

i. Condition precedent
71
71
ii. Fraud, mistake, malice, intent, knowledge and other condition

of the mind, judgments, official documents or acts
71
b. Pleading an actionable document
71
c. Specific denials (Effect of failure to make specific denials, When a

specific denial requires an oath)
73
5. Effect of failure to plead
75
a. Failure to plead defenses and objections
75
b. Failure to plead a compulsory counterclaim and cross-claim
75
6. Default
75
a. When a declaration of default is proper
75
b. Effect of an order of default, Effect of a partial default
76
c. Relief from an order of default, Extent of relief
76
d. Actions where default is not allowed
80
7. Filing and service of pleadings
81
a. Modes of service (Personal service, Service by mail,

Substituted service)
8. Amendment
81
82
a. Amendment as a matter of right
82
b. Amendments by leave of court
82
c. Formal amendment
83
d. Amendments to conform to or authorize presentation of evidence
83
e. Effect of amended pleading
84
F. Summons
87
3
1. Nature and purpose of summons in relation to actions in personam,

in rem and quasi in rem
87
2. Voluntary appearance
88
3. Personal service
89
4. Substituted service
89
5. Extra-territorial service, when allowed
90
G. Motions
92
1. Motions in general
92
a. Definition of a motion
92
b. Motions versus pleadings
92
c. Notice of hearing and hearing of motions
92
d. Omnibus Motion Rule
92
2. Motions for Bill of Particulars
94
a. Purpose and when applied for
94
b. Actions of the court
94
c. Compliance with the order and effect of noncompliance
94
3. Motion to dismiss
95
a. Grounds
95
b. Resolution of motion
95
c. Remedies of plaintiff when the complaint is dismissed
96
d. Remedies of the defendant when the motion is denied
96
e. When grounds pleaded as affirmative defenses
97
H. Dismissal of actions
98
1. Dismissal upon notice by plaintiff; two-dismissal rule
98
2. Dismissal upon motion by plaintiff; effect on existing counterclaim
99
I. Pre-trial
100
1. Concept of pre-trial, Nature and purpose
100
2. Notice of pre-trial
100
3. Appearance of parties; effect of failure to appear
100
4. Distinction between pre-trial in civil case and pre-trial in criminal case
102
5. Alternative Dispute Resolution (ADR) (Special Rules of Court on ADR

(A.M. No. 07-11-08-SC))
102
J. Intervention
103
1. Requisites for intervention
103
2. Remedy for the denial of motion to intervene
103
K. Subpoena
104
1. Subpoena duces tecum
104
2. Subpoena ad testificandum
105
3. Quashing of subpoena
105
L. Modes of Discovery
106
1. Depositions pending action; depositions before action or pending appeal
106
2. Production or inspection of documents or things
107
3. Consequences of refusal to comply with modes of discovery
108
M. Trial
109
1. Order of trial; reversal of order
109
N. Demurrer to evidence
109
1. Waiver of right to present evidence
109
2. Demurrer to evidence in a civil case versus demurrer to evidence in a

criminal case
110
O. Judgments and Final Orders
112
1. Judgment without trial
113
2. Judgment on the pleadings
113
3. Summary judgments
115
a. For the claimant
115
b. For the defendant
116
c. When the case not fully adjudicated
116
4. Judgment on the pleadings versus summary judgments
117
5. Rendition of judgments and final orders
117
6. Entry of judgment and final order
118
P. Post-judgment remedies
119
1. Motion for new trial or reconsideration
119
2. Appeals in general
119
a. Judgments and final orders subject to appeal
119
b. Modes of appeal
119
i. Ordinary appeal
119
ii. Petition for review
119
iii. Petition for review on certiorari
119
c. Period of appeal
124
d. Perfection of appeal
124
e. Appeal from judgments or final orders of the MTC
127
f. Appeal from judgments or final orders of the RTC
127
g. Appeal from judgments or final orders of the CA
131
h. Appeal from judgments or final orders of the CTA
132
i. Review of final judgments or final orders of quasi-judicial agencies
132
3. Relief from judgments, orders and other proceedings
133
a. Grounds for availing of the remedy
133
b. Time to file petition
133
c. Contents of petition
133
4. Annulment of judgments or final orders and resolutions
133
a. Grounds for annulment
133
b. Period to file action
135
c. Effects of judgment of annulment
135
5. Collateral attack of judgments
136
Q. Execution, satisfaction and effect of judgments
136
1. Difference between finality of judgment for purposes of appeal;

for purposes of execution
136
2. When execution shall issue (Execution as a matter of right, Discretionary

execution)
136
3. How a judgment is executed
138
a. Execution by motion or by independent action
138
b. Issuance and contents of a writ of execution
139
c. Execution of judgments for money
140
4. Properties exempt from execution
143
5. Proceedings where property is claimed by third persons
143
a. In relation to third-party claim in attachment and replevin
143
6. Rules on Redemption
144
7. Examination of judgment obligor when judgment is unsatisfied
145
8. Effect of judgment or final orders
146
9. Enforcement and effect of foreign judgments or final orders
146
R. Provisional remedies
148
1. Nature of Provisional Remedies
149
2. Preliminary Attachment
149
a. Grounds for issuance of writ of attachment
149
b. Requisites; Issuance and contents of order of attachment;

affidavit and bond
151
c. Rule on prior or contemporaneous service of summons
152
d. Manner of attaching real and personal property; when property

attached is claimed by third person
153
e. Satisfaction of judgment out of property attached
154
3. Preliminary injunction
155
a. Definitions and differences: preliminary injunction and

temporary restraining order; status quo ante order
155
b. Requisites
156
c. Kinds of injunction
156
d. When writ may be issued
156
e. Grounds for issuance of preliminary injunction
157
f. Duration of a Temporary Restraining Order (TRO)
157
5. Receivership
159
a. Cases when receiver may be appointed

6. Replevin
159
159
a. When may writ be issued
160
b. Requisites
160
c. Affidavit and bond; redelivery bond
160
d. Sheriffs duty in the implementation of the writ; when property is

claimed by third party
161
S. Special civil actions
161
1. Interpleader (Requisites for interpleader, When to file)
161
2. Declaratory reliefs and similar remedies
162
a. When court may refuse to make judicial declaration
162
3. Review of judgments and final orders or resolution of the Comelec and COA 162
a. Application of Rule 65 under Rule 64
162
b. Distinction in the application of Rule 65 to judgments of the Comelec

and COA and the application of Rule 65 to other tribunals,
persons and officers
162
4. Certiorari, prohibition and mandamus
a. Definitions and distinctions
163
163
i. Certiorari distinguished from appeal by certiorari

b. When petition for certiorari, prohibition and mandamus is proper
c. Exceptions to filing of motion for reconsideration before filing
7
163
163
petition
165
d. Effects of filing of an unmeritorious petition

5. Quo Warranto
165
169
a. Judgment in quo warranto action

6. Expropriation
169
170
a. When plaintiff can immediately enter into possession of the real

property, in relation to R.A. No. 8974
170
b. Defenses and objections
170
c. Ascertainment of just compensation
171
7. Foreclosure of real estate mortgage
171
a. Judgment on foreclosure for payment or sale
171
b. Deficiency judgment (Instances when court cannot render deficiency

judgment)
172
8. Partition
172
a. Matters to allege in the complaint for partition

9. Forcible entry and unlawful detainer
172
173
a. Definitions and distinction
173
b. How to stay the immediate execution of judgment
174
c. Summary procedure, prohibited pleadings
175
10. Contempt
176
a. Acts deemed punishable as indirect contempt
176
IV. Special Proceedings

A. Settlement of estate of deceased persons, venue and process
178
1. Which court has jurisdiction
178
2. Venue in judicial settlement of estate
179
B. Summary settlement of estates
179
1. Extrajudicial settlement by agreement between heirs, when allowed
179
2. Summary settlement of estates of small value, when allowed
181
3. Remedies of aggrieved parties after extrajudicial settlement of estate
181
C. Production and probate of will
182
1. Nature of probate proceeding
182
2. Who may petition for probate; persons entitled to notice
182
D. Allowance or disallowance of will
183
1. Contents of petition for allowance of will
183
2. Grounds for disallowing a will
184
8
3. Effects of probate
184
E. Letters testamentary and of administration
186
1. When and to whom letters of administration granted
186
2. Opposition to issuance of letters testamentary; simultaneous filing of

petition for administration
187
F. Claims against the estate
188
1. Claim of executor or administrator against the estate
188
G. Actions by and against executors and administrators
189
H. Distribution and Partition
189
I. Escheat
190
1. Remedy of respondent against petition; period for filing a claim

J. Guardianship
190
191
1. Rule on guardianship over minor
191
K. Adoption
191
L. Writ of habeas corpus
192
1. Contents of the petition
192
2. Distinguish peremptory writ from preliminary citation
193
3. When writ disallowed/discharged
193
4. Rules on Custody of Minors and Writ of Habeas Corpus in relation to

Custody of Minors (A.M. No. 03-04-04-SC)
194
M. Writ of Amparo (A.M. No. 07-9-12-SC)
196
1. Coverage
196
2. Distinguish from habeas corpus and habeas data
196
N. Writ of Habeas Data (A.M. No. 08-1-16-SC)
197
1. Scope of writ
197
O. Absentees
197
1. Purpose of the rule
197
2. Who may file; when to file
197
P. Cancellation or correction of entries in the Civil Registry

1. Entries subject to cancellation or correction under Rule 108, in relation to
R.A. No. 9048
Q. Appeals in special proceedings
198
198
200
V. Criminal Procedure
A. General matters
201
1. Distinguish jurisdiction over subject matter from jurisdiction over person of

the accused
201
2. Jurisdiction of criminal courts
201
3. When injunction may be issued to restrain criminal prosecution
202
B. Prosecution of offenses
202
1. Criminal actions, how instituted
202
2. Who may file them, crimes that cannot be prosecuted de officio
203
3. Criminal actions, when enjoined
204
4. Control of prosecution
204
5. Designation of offense
204
6. Amendment or Substitution of complaint or information
205
7. Venue of criminal actions
208
8. Intervention of offended party
209
C. Prosecution of civil action
210
1. Rule on implied institution of civil action with criminal action
210
2. When separate civil action is suspended
212
3. Effect of death of the accused or convict on civil action
213
4. Prejudicial Question
214
5. Rule on filing fees in civil action deemed instituted with the criminal action 215
D. Preliminary investigation
217
1. Nature of right
217
2. Purposes of preliminary investigation
217
3. Resolution of investigation prosecutor
217
E. Arrest
218
1. Arrest, how made
218
2. Arrest without warrant, when lawful
218
3. Method of arrest (By officer with warrant, By officer without warrant,

By private person)
220
F. Bail
220
1. Nature
220
2. When a matter of right; exceptions
222
3. When a matter of discretion
222
4. Hearing of application for bail in capital offenses
224
5. Guidelines in fixing amount of bail
226
6. Hold departure order & Bureau of Immigration watch list
226
10
G. Rights of the accused
227
1. Rights of accused at the trial
227
2. Rights of persons under custodial investigation
227
H. Arraignment and plea
235
1. Arraignment and plea, how made
235
2. When may accused enter a plea of guilty to a lesser offense
235
3. Accused pleads guilty to capital offense, what the court should do
236
4. Searching inquiry
237
I. Motion to quash
237
1. Grounds
237
2. Exception to the rule that sustaining the motion is not a bar to another
prosecution
240
3. Double jeopardy
241
4. Provisional dismissal
245
J. Pre-trial
247
1. Pre-trial agreement
247
K. Trial
247
1. Trial in absentia
247
2. Remedy when accused is not brought to trial within the prescribed period
248
3. Requisites for discharge of accused to become a state witness
248
4. Effects of discharge of accused as state witness
249
5. Demurrer to evidence
250
L. Judgment
255
1. Promulgation of judgment; instances of promulgation of judgment

in absentia
M. New trial or reconsideration
255
256
1. Requisites before a new trial may be granted on ground of newlydiscovered evidence

N. Appeal
256
257
1. Effect of appeal by any of several accused
257
2. Grounds for dismissal of appeal
257
O. Search and seizure
258
1. Nature of search warrant
258
2. Distinguish from warrant of arrest
258
3. Particularity of place to be searched and things to be seized
259
11
4. Personal property to be seized
259
5. Exceptions to search warrant requirement
260
a. Search incidental to lawful arrest
260
b. Plain view situation
261
c. Stop and frisk situation
261
VI. Evidence
A. General principles
262
1. Admissibility of evidence
262
a. Relevance of evidence and collateral matters
265
2. Burden of proof and burden of evidence
266
3. Presumptions (Conclusive presumptions, Disputable presumptions)
266
4. Liberal construction of the rules of evidence
267
5. Quantum of evidence (weight and sufficiency of evidence)
267
a. Proof beyond reasonable doubt

b. Preponderance of evidence
c. Substantial evidence
d. Clear and convincing evidence
B. Judicial notice and judicial admissions
267
1. Matters of judicial notice (Mandatory, Discretionary)
267
2. Judicial admissions
268
a. How judicial admissions may be contradicted

3. Judicial notice of foreign laws, law of nations and municipal ordinance
C. Object (real) evidence
268
268
271
1. Nature of object evidence
271
2. Rule on DNA Evidence (A.M. No. 06-11-5-SC)
271
a. Assessment of probative value of DNA evidence and admissibility

D. Documentary evidence
271
272
1. Meaning of documentary evidence
272
2. Best Evidence Rule
272
a. Meaning of the rule
272
b. When applicable
273
c. Requisites for introduction of secondary evidence
273
3. Rules on Electronic Evidence (A.M. No. 01-7-01-SC)
12
375
a. Scope; coverage; meaning of electronic evidence; electronic data

message
275
b. Probative value of electronic documents or evidentiary weight;

method of proof
276
4. Parol Evidence Rule
276
a. Application of the parol evidence rule

5. Authentication and proof of documents
276
277
a. When evidence of authenticity of a private writing is not required

(ancient documents)
277
b. Public documents as evidence; proof of official record
277
c. Proof of lack of record
278
E. Testimonial evidence
279
1. Qualifications of a witness
279
2. Competency versus Credibility of a witness
280
3. Disqualifications of witnesses
280
a. By reason of mental capacity or immaturity
280
b. By reason of marriage
280
c. By reason of death or insanity of adverse party
285
d. By reason of privileged communications
286
4. Examination of a witness
289
a. Order in the examination of an individual witness
289
i. Direct examination
ii. Cross examination
iii. Re-direct examination
iv. Re-cross examination
v. Recalling the witness
b. How the witness is impeached by evidence of inconsistent statements
(laying the predicate)
289
c. Evidence of the good character of a witness
290
d. Judicial Affidavit Rule (A.M. No. 12-8-8-SC)
290
5. Admissions and confessions
291
a. Res inter alios acta rule
291
b. Confessions
292
c. Similar acts as evidence
295
13
6. Hearsay Rule
295
a. Meaning of hearsay
295
b. Exceptions to the hearsay rule
298
i. Dying declaration
298
ii. Declaration against interest
303
iii. Family reputation or tradition regarding pedigree
303
iv. Part of the res gestae
304
7. Opinion rule
306
a. Opinion of expert witness
306
b. Opinion of ordinary witness
306
8. Character evidence
306
a. Criminal cases
306
9. Rule on Examination of a Child Witness (A.M. No. 004-07-SC)

a. Live-link TV testimony of a child witness
F. Offer and objection
307
307
307
1. Offer of evidence
307
2. When to make an offer
308
3. Objection
309
4. Tender of excluded evidence
310
VII. Revised Rules on Summary Procedure

A. Cases covered by the rule
311
B. Effect of failure to answer
312
C. Preliminary conference and appearances of parties
312
VIII. Katarungang Pambarangay Law

(P.D. No. 1508; R.A. 7610, as amended)
A. Cases covered
313
B. Subject matter for amicable settlement
315
14
I. General Principles
A. Concept of remedial law
Q: What is the concept of remedial law? 2% (2006 Bar Question)
SUGGESTED ANSWER:
The concept of Remedial Law is that it is a branch of public law which prescribes the
procedural rules to be observed in litigations, whether civil, criminal, or administrative, and in
special proceedings, as well as the remedies or reliefs available in each case.
Q: How are remedial laws implemented in our system of government? 2% (2006 Bar
Question)
SUGGESTED ANSWER:
Remedial Laws are implemented in our system of government through the judicial system,
including the prosecutory service, our courts and quasi-judicial agencies.
B. Substantive law vis--vis remedial law
Q: Distinguish between substantive law and remedial, law. 2% (2006 Bar Question)
SUGGESTED ANSWER:
Substantive law is that part of the law which creates, defines and regulates rights and
obligations, the violation of which gives rise to a cause of action. On the other hand, remedial law
prescribes the method of enforcing rights or obtaining redress for their invasion (cf. Bustos v.
Lucero, 81 Phil. 540, 650 [1948]).
C. Nature of Philippine courts
1. Principle of judicial hierarchy
Q: What is meant by hierarchy of courts? (1996 Bar Question)
SUGGESTEDANSWER:
By hierarchy of-courts is meant that while the Supreme Court, the Court of Appeals and
the Regional Trial Courts have concurrent original jurisdiction to issue writs of certiorari,
prohibition, mandamus, quo warranto and habeas corpus, such concurrence does not accord
litigants unrestrained freedom of choice of the court to which application therefor may be directed.
The application should be filed with the court of lower level unless the importance of tHe issue
involved deserves the action of the court of higher level. (Uy vs. Contreras. 237 SCRA 167)
(NOTE: The rules and cases are cited merely for reference purposes)
2. Doctrine of non-interference or doctrine of judicial stability
Q: AB. as mother and in her capacity as legal guardian of her legitimate minor son, CD,
brought action for support against EF, as father of CD and AB's lawfully wedded husband. EF
filed his answer denying his paternity with counterclaim for damages. Subsequently, AB filed
a manifestation in court that in view of the denial made by EF, would be futile to pursue the
15
case against EF. AB agreed to move for the dismissal of the complaint, subject to the
condition that EF will withdraw his counterclaim for damages. MB and EF filed a joint motion
to dismiss. The court dismissed the case with prejudice. Later on, minor son CD, represented
by AB, filed another complaint for support against EF. EF filed a motion to dismiss on the
ground of res judicata.
(a)
Is res judicata a valid ground for dismissal of the second complaint? Explain your
answer. (3%)
(b)
What are the essential requisites of res Judicata (2%) (2000 Bar Question)
SUGGESTED ANSWER:
(a)
No, res Judicata is not a defense in an action for support even if the first case was dismissed
with prejudice on a Joint motion to dismiss. The plaintiffs mother agreed to the dismissal of the
complaint for support in view of the defendants answer denying his paternity with a counterclaim
for damages. This was in the nature of a compromise of the right of support which Is prohibited by
law. (Art. 2035. Civil Code; De AsIs v. Court of Appeals, 303 SCRA 176 ( 19991].
(b)
The essential requisites of res judicata are:

(1)
the judgment or order rendered must be final;
(2)
the court rendering the same must have Jurisdiction of the subject matter and of the
parties;
(3)
it must be a judgment or order on the merits; and
(4)
there must be between the two cases identity of parties, identity of subject matter,
and identity of causes of action. [San Diego v. Cardona, 70 Phil. 281 (1940].)
Q: Evelyn filed a complaint for a sum of money against Joan but the complaint was later
dismissed for failure to prosecute within a reasonable length of time. Thereafter, Evelyn
filed another case based on the same facts against Joan. Joan moved to dismiss the same on
the ground that the cause of action therein is barred by a prior judgment (res judicata).
Evelyn opposed the motion claiming that res judicata has not set in since Joan was not
served with summons and the complaint in the first case was earlier dismissed, so that the
trial court never acquired jurisdiction over her person and, consequently, over the case.
How would you decide the motion of Joan? Explain. (1989 Bar Question)
Answer:
The motion to dismiss is denied. One of the essential requisites of res judicata is jurisdiction
over the parties. Inasmuch as Joan was not served with the summons in the first case which was
earlier dismissed, the court did not acquire jurisdiction over her person and, hence, the dismissal
was without prejudice to the filing of another action against her. (Republic Planters Bank vs.
Molina, September 28,1988)
II. Jurisdiction
A. Over the parties
1. How jurisdiction over the plaintiff is acquired
16
Q: Amorsolo, a Filipino citizen permanently residing in New York City, filed with the RTC of
Lipa City a Complaint for Rescission of Contract of Sale of Land against Brigido, a resident of
Barangay San Miguel, Sto. Tomas, Batangas. The subject property, located in Barangay
Talisay, Lipa City, has an assessed value of P19,700.00. Appended to the complaint is
Amorsolos verification and certification of non-forum shopping executed in New York City,
duly notarized by Mr. Joseph Brown, Esq., a notary public in the State of New York. Brigido
filed a motion to dismiss the complaint on the following grounds:
The court cannot acquire jurisdiction over the person of Amorsolo because he is not
a resident of the Philippines; (2%) (2009 Bar Question)
[a]
SUGGESTEDANSWERThe first ground raised lacks merit because jurisdiction over the person of a plaintiff is
acquired by the court upon the filing of plaintiffs complaint therewith. Residency or citizenship is
not a requirement for filing a complaint, because plaintiff thereby submits to the jurisdiction of the
court.
Q: How is jurisdiction acquired by a court over the person of: (1994 Bar Question)
1)
the plaintiff in a special civil action for mandamus?
SUGGESTEDANSWER:
1)
Jurisdiction is acquired over the plaintiff in a special civil action for mandamus by the
commencement or filing of the action.
ALTERNATIVEANSWER:
Such Jurisdiction is acquired by the filing of the action and the payment of the prescribed
docket fees.
Q: Pernito, also known in the community as Peregrino filed a petition for change of name to
Pedro. The name Peregrino appeared in the body of the petition but not in the caption. When
the petition was published, the caption and the body of the petition were merely lifted
verbatim, so that as published, the petitions caption still did not contain Peregrino as the
petitioners alias. The government lawyer filed a motion to dismiss on the ground that,
notwithstanding publication for the requisite number of times, the court did not acquire
Jurisdiction over the petition because petitioners alias (Peregrino) did not appear in the
published caption. The court denied the motion to dismiss with the ruling that there was
substantial compliance with the law and that the omission of the alias in the caption may be
deemed de minimis because the alias was clearly set forth in the petition itself.
Was the court correct in denying the motion to dismiss? Explain. (1992 Bar Question)
SUGGESTED ANSWER:
No, the failure of the petitioner to include his alias (Peregrino) in the caption is a
jurisdictional defect and the inclusion of the alias in the body of the petition does not cure said
defect. The reason for the rule is that the ordinary reader only glances fleetingly at the caption in a
special proceeding and only if the caption strikes him does he proceed to read the body of the
petition; hence, .he will probably not notice the other names or aliases of the petitioner. (Gil Go vs.
17
Republic, 77 SCRA 65)

2. How jurisdiction over the defendant is acquired
Q: How is jurisdiction acquired by a court over the person of: (1994 Bar Question)
1)
xxx
2)
the defendant in an action for unlawful detainer?
3)
a non-resident defendant who is not found in the Philippines, in an action for
compulsory acknowledgment of his natural child?
SUGGESTEDANSWER:
1)
xxx
2)
Jurisdiction is acquired over the person of the defendant in an action for unlawful detainer
by the proper service of summons on him or by his voluntary appearance.
3)
Jurisdiction cannot be acquired over the person of a non-resident defendant who is not
found in the Philippines in an action for compulsory acknowledgment of his natural child because
he is outside the jurisdiction of the court.
ALTERNATIVEANSWER:
Such jurisdiction can be acquired by the voluntary appearance of the non-resident
defendant who is not found in the Philippines.
Q: Lani filed an action for partition and accounting in the Regional Trial Court (RTC) of
Manila against her sister Mary Rose, who is a resident of Singapore and is not found in the
Philippines. Upon motion, the court ordered the publication of the summons for three weeks
in a local tabloid, Bulgar. Linda, an OFW vacationing in the Philippines, saw the summons in
Bulgar and brought a copy of the tabloid when she returned to Singapore, Linda showed the
tabloid and the page containing the summons to Mary Rose, who said, Yes I know, my
kumare Anita scanned and e-mailed that page of Bulgar to me!
Did the court acquire jurisdiction over Mary Rose? (2008 Bar Question)
SUGGESTED ANSWER:
No, the court did not acquire jurisdiction over Mary Rose, the defendant. While serving
summons by publication is allowed in this case under Section 15, Rule 14 of the Rules of Court, the
required sending of the copy of the summons and the order of the Court by registered mail to the
last known address of the same defendant has not been followed; service of summons by
publication under said Rule has not been complied with; thus, there is no valid service.
ALTERNATIVE ANSWER:
Yes, the court acquired jurisdiction over Mary Rose because service of summons by
publications is allowed when the defendant does not reside and is not found in the Philippines and
the action is in rem or quasi in rem under Sec. 15, Rule 14 of 1997 Rules of Civil Procedure. Besides,
18
Mary Rose had actual knowledge of the complaint against her (PCIB v. Alejandro, 533 SCRA 738
[2007]).
B. Over the subject matter
1. Error of jurisdiction as distinguished from error of judgment
Q: Distinguish between error of judgment and error of jurisdiction. (1989 Bar Question)
Answer:
An error of judgment is one which the court may commit in the exercise of its jurisdiction.
Such an error does not deprive the court of jurisdiction and is correctible only by appeal; whereas
an error of jurisdiction is one which the court acts without or in excess of its jurisdiction. Such an
error renders an order or judgment void or voidable and is correctible by the special civil action of
certiorari. De la Cruz vs. Moir, 36 Phil. 213; Cochingyan vs. Cloribel, 76 SCRA 361).
2. How jurisdiction is conferred and determined
Q: A complaint filed for recovery of possession of real property also prayed for moral and
exemplary damages the amounts of which have been left to the courts discretion, and for
actual damages the amount of which shall be proven at the trial. The docket fees for the
action involving the real property have been paid, but not those for the related damages, the
amounts of which have not been specified. (1991 Bar Question)
1.
(a) Did the court acquire Jurisdiction over the action?
Answer:
1.
(a) Yes, because the docket fees for the action involving the real property have been paid.
(b) May the action be dismissed?

Answer;
(b)
No, because the court has acquired jurisdiction over the action. However, the claim for
damages, as to which no amounts were specified may be expunged, or the plaintiff may be allowed
to amend the complaint so as to specify the amount of damages and to pay the requisite fees within
the prescriptive period. (Tacay v. RTC, 180 SCRA 433)
3. Objections to jurisdiction over the subject matter
Q: In a suit to recover a sum of money, plaintiff filed his complaint with the Regional Trial
Court instead of with the Municipal Trial Court which has jurisdiction over the case because
of the amount involved. The defendant did not file a motion to dismiss. Neither did the
Regional Trial Court dismiss the case on its own initiative. At the pre-trial hearing, defendant
tried to have the case settled. With the effective help of the presiding judge, he was able to
forge with the plaintiff a compromise agreement which stipulated that he would pay in
twelve (12) equal monthly installments starting the first day of the following month, each to
become due without need of any demand. Failure to pay any installment when due will
render the entire amount enforceable by writ of execution. Judgment was rendered on the
basis of the compromise agreement and was then served on the parties.
19
Defendant failed to pay the first installment as it fell due. Plaintiff thereupon sought
execution which was granted, and the corresponding writ of execution was issued.
Defendant filed in due form a motion to set aside the writ of execution upon the contention
that the court had no power to order the issuance of the writ of execution because it has no
jurisdiction over the nature of the action, an issue that can be raised at any stage of the case.
The court granted the defendants motion and accordingly set aside the writ of execution.
Did the court act correctly? Why? (1992 Bar Question)
Suggested Answer:
Yes, the court acted correctly, because jurisdiction over the subject matter or nature of an
action cannot be conferred by agreement of the parties. Whenever it appears that the court has no
jurisdiction over the subject matter, it shall dismiss the action,
Another Acceptable Answer:
Inasmuch as the defendant did not file a motion to dismiss and the parties submitted a
compromise agreement on the basis of which judgment was rendered, the defendant is estopped to
raise the question of jurisdiction. (Tiyam vs. Sibonghanoy, 23 SCRA 29 and other cases)
4. Effect of estoppel on objections to jurisdiction
Q: Angelina sued Armando before the Regional Trial Court (RTC) of Manila to recover the
ownership and possession of two parcels of land; one situated in Pampanga, and the other in
Bulacan.
[a]
May the action prosper? Explain. (2%) (2009 Bar Question)
SUGGESTED ANSWER:
NO, the action may not prosper, because under Rep. Act No. 7691, exclusive original
jurisdiction in civil actions which involve title to, or possession of real property or any interest
therein is determined on the basis of the assessed value of the land involved, whether it should be
P20,OOO in the rest of the Philippines, outside of the Manila with courts of the first level or with
the-Regional Trial Court. The assessed value of the parcel of land in Pampanga is different from the
assessed value of the land in Bulacan. What is involved is not merely a matter of venue, which is
waivable, but of a matter of jurisdiction.
However, the action may prosper if jurisdiction is not in issue, because venue can be waived.
ALTERNATIVEANSWER:
YES, if the defendant would not file a motion to dismiss on ground of improper venue and
the parties proceeded to trial.
[b]
Will your answer be the same if the action was for foreclosure of the mortgage over
the two parcels of land? Why or why not? (2%)
SUGGESTEDANSWER:
NO, the answer would not be the same. The foreclosure action should be brought in the
20
proper court of the province where the land or any part thereof is situated, either in Pampanga or
in Bulacan. Only one foreclosure action need be filed unless each parcel of land is covered by
distinct mortgage contract.
In foreclosure suit, the cause of action is for the violation of the terms and conditions of the
mortgage contract; hence, one foreclosure suit per mortgage contract violated is necessary.
[a]
xxx
[b]
The RTC does not have jurisdiction over the subject matter of the action involving
real property with an assessed value of P19,700.00; exclusive and original jurisdiction is
with the Municipal Trial Court where the defendant resides; (3%) and (2009 Bar Question)
SUGGESTEDANSWER:
The second ground raised is also without merit because the subject of the litigation,
Rescission of Contract, is incapable of pecuniary estimation the exclusive original jurisdiction to
which is vested by law in the Regional Trial Courts. The nature of the action renders the assessed
value of the land involved irrelevant.
Q: A filed a complaint against Y with the RTC of Argao, Cebu, for payment of a promissory
note in the- sum of P50.000.00, for liquidated damages of P5.000.00 and attorneys fees of
P5.000.00. After he filed his answer, Y died, but his lawyer did not file a motion to dismiss. In
the meantime, Y*s widow filed with the above court a special proceeding for the settlement
of the intestate estate of Y. The widow, Z, was appointed the administratrix of the estate. A
filed in the civil case a motion to have Y substituted by the administratrix; the latter did not
object. The court granted the motion. Trial on the merits was had. In due course, the court
rendered a decision in favor of A. At the time it was rendered, the period to file claims in the
intestate estate of Y had already lapsed. The administratrix, X, did not appeal from the
decision; and after it became final. A moved for the execution of judgment, Z opposed the
motion contending that the decision is void because the claim does not survive. The case
should have been dismissed upon the death of Y since upon his death, the court lost
jurisdiction over the case. (1991 Bar Question)
a)
Rule on the issue.
Answer:
(a)
Since Y died before final Judgment in the RTC, the action for money should have been
dismissed and prosecuted as a money claim against his estate. However, since the widow. Z, who
was appointed administratrix of the estate, did not object to the trial on the merits and did not
appeal from the decision, she is deemed to have waived the right to have the claim litigated in the
estate proceedings. Moreover, she is estopped from questioning the court's jurisdiction. Hence, the
decision is valid. (Sec. 21 of Rule 3; Ignacio v. Pambusco, 20 SCRA 126; Echaus u. Blanco. 179 SCRA
21
704)
(b)
If the opposition is without merit, can the writ of execution be validly issued?
Answer:
(b)
No, because a Judgment for money cannot be enforced by a writ of execution against the
estate of the deceased which is in custodia legis. (Sec. 7 of Rule 39; Paredes v. Moya, 61 SCRA 527)
(c)
If it cannot be issued, what is the remedy of A?
Answer:
(c)
His remedy is to file a money claim against the estate of Y based on the judgment.
Although the period for filing money claims has already lapsed, the same may be allowed before an
order of distribution is entered. (Secs. 2 and 5 of Rule 86; Echaus v. Blanco, supra)
C. Over the issues
Q: In complex crimes, how is the jurisdiction of a court determined? (2003 Bar Question)
SUGGESTED ANSWER:
In a complex crime, jurisdiction over the whole complex crime must be lodged with
the trial court having jurisdiction to impose the maximum and most serious penalty
imposable on an offense forming part of the complex crime. (Cuyos v. Garcia, 160 SCRA 302
[1988]).
D. Over the res or property in litigation
Q: Angelina sued Armando before the Regional Trial Court (RTC) of Manila to recover the
ownership and possession of two parcels of land; one situated in Pampanga, and the other in
Bulacan.
(a) May the action prosper? Explain. (2%) (2009 Bar Question)
SUGGESTED ANSWER:
NO, the action may not prosper, because under Rep. Act No. 7691, exclusive original
jurisdiction in civil actions which involve title to, or possession of real property or any interest
therein is determined on the basis of the assessed value of the land involved, whether it should be
P20,OOO in the rest of the Philippines, outside of the Manila with courts of the first level or with
the-Regional Trial Court. The assessed value of the parcel of land in Pampanga is different from the
assessed value of the land in Bulacan. What is involved is not merely a matter of venue, which is
waivable, but of a matter of jurisdiction.
However, the action may prosper if jurisdiction is not in issue, because venue can be waived.
ALTERNATIVEANSWER:
YES, if the defendant would not file a motion to dismiss on ground of improper venue and
the parties proceeded to trial.
22
[b]
Will your answer be the same if the action was for foreclosure of the mortgage over
the two parcels of land? Why or why not? (2%)
SUGGESTEDANSWER:
NO, the answer would not be the same. The foreclosure action should be brought in the
proper court of the province where the land or any part thereof is situated, either in Pampanga or
in Bulacan. Only one foreclosure action need be filed unless each parcel of land is covered by
distinct mortgage contract.
In foreclosure suit, the cause of action is for the violation of the terms and conditions of the
mortgage contract; hence, one foreclosure suit per mortgage contract violated is necessary.
E. Jurisdiction of courts
1. Supreme Court
Q: Compare the certiorari jurisdiction of the Supreme Court under the Constitution with that
under Rule 65 of the Rules of Civil Procedure. (4%) (2008 Bar Question)
SUGGESTED ANSWER:
Under the Constitution, the certiorari jurisdiction of the Supreme Court provides for its
expanded jurisdiction power of judicial power over [governs] all branches or instrumentalities of
the government where is a grave abuse of discretion amounting to lack or excess of jurisdiction, as
[agencies and instrumentalities] provided in Section 1, second par., Art. VIII of the 1987
Constitution. The petition is filed under Rule 45 of the Rules of Court, and [The writ is directed not
only to tribunal, board or officer exercising judicial or quasi-judicial functions. And] the period fixed
for availing of the remedy is within 30 days from receipt of the copy of the decision, order or ruling
in question (Sec. 7, Art. IX).
But under Rule 65 of the Rules of Court, the certiorari jurisdiction of the Supreme Court is limited to
acts done without or in excess of jurisdiction or grave abuse of discretion amounting to lack or
excess of jurisdiction, by a tribunal, board or officer exercising judicial or quasi- judicial functions
only. And the period fixed for availing of the remedy is not later than 60 days from notice of
judgment; order or resolution in question (Secs. 1 and 4, Rule 65, Rules of Court).
Q: Can a suit for injunction be aptly filed with the Supreme Court to stop the President of the
Philippines from entering into a peace agreement with the National Democratic Front?
(2003 Bar Question)
SUGGESTED ANSWER:
No, a suit for injunction cannot aptly be filed with the Supreme Court to stop the President
of the Philippines from entering into a peace agreement with the National Democratic Front, which
is a purely political question. (Madarang v. Santamaria, 37 Phil. 304 [1917]). The President of the
Philippines is immune from suit.
Q: After the First Division of the Supreme Court decided a case, the losing party sought a
reconsideration from the Supreme Court en banc.
23
Is the action taken by the said losing party proper? Explain your answer. (1990 Bar
Question)
Answer:
No, because the Supreme Court en banc is not an appellate court to which decisions or
resolutions of a Division may be appealed. However, a motion for reconsideration may be
considered by the Supreme Court en banc if three members of the Division are of the opinion that
the same merits the attention of the Court en banc and a majority of the Court en banc decide to
consider it. (Circular No. 2.89, Feb. 7, 1989)
2. Court of Appeals
Q: Give at least three instances where the Court of Appeals may act as a trial court. (3%)
(2008 Bar Question)
SUGGESTED ANSWER:
1)
Instances where the Court of Appeals may act as a trial court are:
2)
In annulment of judgment under Secs. 5 and 6, Rule 47. Should the Court o Appeals
find prima facie merit in the petition, the same shall be given due course and
summons shall be served on the respondent, after which trial will follow, where the
procedure in ordinary civil cases shall be observed.
3)
When a motion for new trial is granted by the Court of Appeals, the procedure in the
new trial shall be the same as that granted by a Regional Trial Court (Sec. 4, Rule
53).
4)
A petition for habeas corpus shall be set for hearing (Sec. 12, Rule 102).
5)
In a petition for the writs of amparo and habeas data, a hearing can be conducted.
6)
Under Section 12, Rule 124 of the Rules of Criminal Procedure, the Court of Appeals
has the power to try cases and conduct hearings, receive evidence and perform any
and all acts necessary to resolve factual issues cases which fall within its original
and appellate jurisdiction.
7)
The Court of Appeals can grant a new trial based on the ground of newly discovered
evidence. (Sec. 14, Rule 124).
8)
The Court of Appeals, under Section 6, Rule 46, whenever necessary to resolve
factual issues, may conduct hearing thereon or delegate the reception of the
evidence of such issues to any of its members or to an appropriate agency or office.
[NOTE: It is suggested that an answer with any three (3) of the enumerated instances should be
considered as correct].
Q: Does the Court of Appeals have jurisdiction to review the Decisions in criminal and
administrative cases of the Ombudsman? 2.5% (2006 bar Question)
SUGGESTED ANSWER:
The Court of Appeals can only review the Decisions of the Ombudsman in administrative
cases in an appeal by petition for review under Rule 43 of the 1997 Revised Rules of Civil
Procedure. It has no jurisdiction to review Decisions of the Ombudsman in criminal cases, the
24
proper remedy being to file with the Supreme Court an original petition for certiorari under Rule 65
(Fabian v. Ombudsman Desierto, 295 SCRA 470 [1998J; Kuizon v. Ombudsman Desierto, 354 SCRA
158 [200lj: Mendoza- Arce v. Ombudsman, 380 SCRA 325 [20021).
Q: Menez Duque filed an action against Fuji, Inc. before the Regional Trial Court for recovery
of actual, moral and exemplary damages resulting from his alleged unfounded and unjust
dismissal from his job. Fuji. Inc. filed an answer asserting that Menez dismissal was for just
and valid cause.
After trial, the Regional Trial Court rendered a decision sustaining Menez claim and
ordering Fuji, Inc. to pay him actual, moral and exemplary damages. Fuji, Inc. appealed to the
Court of Appeals where it insisted that Menez dismissal was for valid and just cause.
Without resolving the assigned error, the Court of Appeals set aside the appealed decision
and dismissed the case on the ground that it is the Labor Arbiter, not the ordinary courts,
which has jurisdiction to entertain the claim for damages.
Pursuant to Rep. Act No. 6715, "claims for actual, moral exemplary and other forms of
damages arising from employer-employee relations" fall within the original and exclusive
Jurisdiction of Labor Arbiters. Considering, however, that the lack of jurisdiction of the trial
court was not assigned as error in the appellants brief, did the Court of Appeals act properly
in its decision? Why? (1993 Bar Question)
Answer:
Yes, because the fact that the lack of Jurisdiction of the trial court was not assigned as error
in the appellants brief should not prevent the Court of Appeals from taking up that issue, as the
lack of jurisdiction of the lower court is apparent from the face of the record. It is fundamental that
a court of justice could only validly act upon a cause of action or subject matter of a case over which
it has jurisdiction. Said jurisdiction is one conferred by law and cannot be acquired through, or
waived by, any act or omission of the parties. (Calimlim vs. Ramirez, 118 SCRA 399; Dy vs. National
Labor Relations Commission, 145 SCRA 211).
Alternative Answer:
Fuji, Inc. is estopped from raising the question of jurisdiction, inasmuch as it filed an answer
asserting Menezs dismissal was for just and valid cause and in its appeal to the Court of Appeals, it
insisted on that defense. (Tijam vs. Sibonghanoy, 23 SCRA 29 and other cases)
Q: Roxanne, a widow, filed a petition for habeas corpus with the Court of Appeals against
Major Amor who is allegedly detaining her 18-year-old son Bong without authority of law.
After Major Amor had filed a return alleging the cause of detention of Bong, the Court of
Appeals promulgated a resolution remanding the case to the Regional Trial Court for a fullblown trial due to the conflicting facts presented by the parties in their pleadings. In
directing the remand, the Court of Appeals relied on Sec. 9(1), in relation to Sec. 21 of BP 129
conferring upon said Court the authority to try and decide habeas corpus cases concurrently
with the Regional Trial Courts.
Did the Court of Appeals act correctly in remanding the petition to the Regional Trial Court?
Why? (1993 Bar Question)
25
Answer:
No. because while the Court of Appeals has original jurisdiction over habeas corpus
concurrent with Regional Trial Courts, it has no authority for remanding to the latter original
actions filed with the former. On the contrary, the Court of Appeals Is specifically given the power
to receive evidence and perform any and all acts necessary to resolve factual issues raised in cases
falling within its original jurisdiction. (Sec. 9. second paragraph of B.P. Big. 129, as amended by E.O.
No. 33 s. 1986; Orda vs. Court of Appeals. 192 SCRA 768).
Alternative Answer:
Yes, because there is no prohibition in the law against a superior court referring a case to a
lower court having concurrent Jurisdiction. The Supreme Court has referred to the Court of Appeals
or the Regional Trial Court cases falling within their concurrent Jurisdiction.
3. Sandiganbayan
Q: TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false.
Explain your answer in not more than two (2) sentences. (5%)
[a]
xxx
[b]
xxx
[c]
In the exercise of its original jurisdiction, the Sandiganbayan may grant petitions for
the issuance of a writ of habeas corpus. (2009 Bar Question)
SUGGESTED ANSWER:
FALSE. The Sandiganbayan may grant petitions for Habeas corpus only in aid of its appellate
jurisdiction (RA 7975, as amended by RA 8249), not in the exercise of original jurisdiction.
4. Regional Trial Courts
[a]
xxx
[b]
xxx
[c]
xxx
[d]
xxx
[e]
The filing of a motion for the reconsideration of the trial courts decision results in
the abandonment of a perfected appeal. (2009 Bar Question)
SUGGESTED ANSWER:
FALSE. The trial court has lost jurisdiction after perfection of the appeal and so it can no
longer entertain a motion for reconsideration.
ALTERNATIVE ANSWER:
FALSE, because the appeal may be perfected as to one party but not yet perfected as to the
other party who may still file a motion for reconsideration without abandonment of his right of
26
appeal even though the appeal of the case is perfected already as to the other party.
Q: On August 13, 2008, A, as shipper and consignee, loaded on the M/V Atlantis in Legaspi
City 100,000 pieces of Century eggs. The shipment arrived in Manila totally damaged on
August 14, 2008. A filed before the Metropolitan Trial Court (MeTC)of Manila a complaint
against B Super Lines, Inc. (B Lines), owner of the M/V Atlantis, for recovery of damages
amounting to P167,899. He attached to the complaint the Bill of Lading. B Lines filed a
Motion to Dismiss upon the ground that the Regional Trial, Court has exclusive original
jurisdiction over "all actions in admiralty and maritime" claims. In his Reply, A contended
that while the action is indeed "admiralty and maritime" in nature, it is the amount of the
claim, not the nature of the action, that governs jurisdiction. Pass on the Motion to Dismiss.
(3%) (2010 Bar Question)
SUGGESTED ANSWER:
The Motion to Dismiss is without merit and therefore should be denied. Courts of the first
level have jurisdiction over civil actions where the demand is for sum of money not exceeding P300,
000.00 or in Metro-Manila, P400, 000.00, exclusive of Interest, damages, attorney's fees, litigation
expenses and, costs: this jurisdiction includes admiralty and marine cases. And where the main
cause of action is the claim for damages, the Amount thereof shall be considered in determining the
jurisdiction of the court (Adm. Circular No. 09-94, June 14, 1994).
Q: Anabel filed a complaint against B for unlawful detainer before the Municipal Trial Court
(MTC) of Candaba, Pampanga. After the issues had been joined, the MTC dismissed the
complaint for lack of jurisdiction after noting that the action was one for accion publiciana.
Anabel appealed the dismissal to the RTC which affirmed it and accordingly dismissed her
appeal. She elevates the case to the Court of Appeals, which remands
The case to the RTC, Is the appellate court correct? Explain (3%). (2010 Bar Question)
SUGGESTED ANSWER:
Yes, the Court of Appeals is correct in remanding the case to RTC for the latter to try the
same on the merits. The RTC, having jurisdiction over the subject matter of the case appealed from
MTC should try the case on the merits as if the case was originally med with it, and not just to affirm
the dismissal of the case.
Rep. Act No.7691, however, vested jurisdiction over specified accion publiciana with courts
of the first level (Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial
Courts) in cases where the assessed value of the real property involved does not exceed P20,
000.00 outside Metro Manila, or in Metro Manila, where such value does not exceed P50, 000.00.
What court has jurisdiction over an action for specific performance filed by a subdivision
homeowner against a subdivision developer? Choose the correct answer. Explain. 2.5%
1.
The Housing and Land Use Regulatory Board
2.
The Securities and Exchange Commission
3.
The Regional Trial Court
4.
The Commercial Court or the Regional Trial Court designated by the Supreme
27
Court to hear and decide commercial cases

SUGGESTED ANSWER:
The Housing and Land Use Regulatory Board (HLURB) that has jurisdiction over an action
for specific performance filed by a subdivision homeowner, who is a lot-buyer or the latters
successor-in-interest, against a subdivision developer (Manila Bankers v. Ng Kok Wei, 418 SCRA
454 [2001]).
ANOTHER SUGGESTED ANSWER:
It is the RTC that has jurisdiction where the issue involved is an ordinary sale between
buyer and seller. Mere assertion by the petitioner that it is a subdivision developer and the land
involved is a subdivision lot, will not automatically strip the trial court of its jurisdiction and
authorize the HLURB to take cognizance of the complaint" [Lacson Hermanos, Inc. v. Heirs of
Ignacio, 462 SCRA 291 [2005J). The mere relationship between the Homeowner" and the
Developer alone does not vest the HLURB with jurisdiction, but the nature of the action which is to
be determined by the allegations of the complaint. Jurisdiction of the HLURB in cases of specific
performance refers to complaints for compliance with contractual and statutory obligations. The
question does not specify what is the contractual stipulation or statutory obligation sought to be
performed. An action for specific performance is an action incapable of pecuniary estimation which
falls under the jurisdiction of the Regional Trial Court unless it is shown that the action falls under
the jurisdiction of any other court or quasi-judicial agency like the HLURB.
Q: A and B are brothers. Their late father, during his lifetime, donated his only real estate
property to B. Thereafter. B sold the property to C who had it titled. C died intestate and was
survived by his son. D. A. claiming that his legitime had been impaired, filed a case for
annulment of donation and sale, cancellation of title and recovery of possession of the
property before Branch 85 of the Regional Trial Court. D filed a motion to dismiss the
complaint on the ground that there is a pending intestate estate proceeding before Branch
87 involving the estate of C. his father, which included the subject real property. A opposed
the motion arguing that Branch 85 has jurisdiction since ownership of the land is involved
and the said branch has jurisdiction to resolve the question of ownership.
As Judge of Branch 85 resolve the motion to dismiss. (1996 Bar Question)
Answer:
I would deny the motion because it is Branch 85 of the Regional Trial Court that has
jurisdiction to decide the question of ownership of said property.
Q: Judge Villamor was the Presiding Judge of the Regional Trial Court of Quezon City (Branch
50), in the criminal case for qualified theft against Ding. After trial. Judge Villamor acquitted
Ding of the charge.
Subsequently, Paterno, the complaining witness in the aforesaid criminal case, filed a civil
action for damages against Judge Villamor for knowingly rendering an unjust judgment
when he acquitted Ding of the qualified theft. The case was filed in the Regional Trial Court
of Pasay City (Branch 100) presided over by Judge Villegas. Judge Villamor filed a motion to
dismiss the civil case for lack of authority on the part of Regional Trial Court of Pasay City
(Branch 100) to review his (Judge Villamor) decision.
28
How should the motion dismiss be resolved? Why? (1993 Bar Question)
Answer:
The motion to dismiss should be granted. The Regional Trial Court of Pasay City has no
authority to review the decision of Judge Villamor acquitting Ding. To allow Judge Villegas to
proceed with the action for damages against Judge Villamor, a co-equal judge of a co-equal court
would in effect permit a court to review and interfere with the Judgment of a co-equal court over
which it has no appellate Jurisdiction or power to review. [Villamor vs. Solas, 203 SCRA 540).
Alternative Answer:
The motion to dismiss should be denied. Since the criminal case was terminated with the
acquittal of Ding, the civil action for damages against Judge Villamor for knowingly rendering an
unjust Judgment may properly be filed with the RTC of Pasay City having jurisdiction thereof.
Q: While Alfredo was abroad, a parcel of land belonging to him was intruded into and
occupied by Rodrigo on January 1, 1991. When Alfredo returned on February 1, 1991, he
immediately demanded that Rodrigo vacate the property. When the demand went unheeded.
Alfredo prepared a complaint alleging: that he is the owner of the property which Rodrigo
has intruded into and is occupying; that the intrusion done with strategy and stealth, has
caused him actual damages of P30.000.00; and he, therefore, is praying the court to restore
him to the possession of the property, to award him damages, and to further grant him such
other reliefs as may be proper in the premises. The complaint was filed on March 1. 1991
with the Regional Trial Court which eventually rendered a decision declaring Alfredo to be
the owner of the land, awarding him damages of P5.000.00, and ordering that possession of
the property be restored to him. Rodrigo appealed to the Court of Appeals where he questioned the jurisdiction of the Regional Trial Court, pertinently contending that it was the
Municipal Trial Court which had original and exclusive jurisdiction over the case because (1)
it was a forcible entry case, having been filed within one year from the alleged intrusion; (2)
the intrusion was allegedly done through strategy and stealth which are hallmarks of a
forcible entry case; and (3) the declaration of ownership was uncalled for since Alfredo did
not ask for it.
As counsel for Alfredo, what points will you raise and advance to rebut the arguments of
Rodrigo and to justify the jurisdiction, as well as the decision of the Regional Trial
Court?(1992 Bar Question)
Suggested Answer:
As counsel for Alfredo. I would raise the point that the action was not one of forcible entry,
but an accion publiciana or a plenary action for recovery of possession de jure which is within the
jurisdiction of the Regional Trial Court. Moreover, the claim of actual damages in the amount of
P30.000.00. is not within the jurisdiction of the Municipal Trial Court If it were an action of forcible
entry, the damages that could be claimed would be the reasonable compensation for the use and
occupation of the land and the amount hereof could exceed Twenty Thousand Pesos. But damages
other than the reasonable compensation for the use and occupation of the premises are not
recoverable in an action of forcible entry. (Reyes us. Court of Appeals, 38 SCRA 138)
With respect to the declaration of ownership, I would argue that it was correct inasmuch as
Rodrigo did not question the ownership of Alfredo.
29
Q: (2002 Bar Question)

A.
xxx
B.
P sued A in the RTC-Manila to recover the following sums: (1) P200,000.00 on
an overdue promissory note, (2) P80,000.00 on the purchase price of a computer,
(3) P150,000.00 for damages to his car and (4) P100,000.00 for attorneys fees and
litigation expenses. Can A move to dismiss the case on the ground that the court has
no jurisdiction over the subject matter? Explain. (2%)
SUGGESTED ANSWER:
B.
No, because the RTC-Manila has jurisdiction over the subject matter. P may sue A In one
complaint asserting as many causes of action as he may have and since all the claims are principally
for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. [Rule 2, sec.
5(d)]. The aggregate amount claimed is P430,000.00, exclusive of the amount of P100,000.00 for
attorneys fees and expenses of litigation. Hence, the RTC-Manila has jurisdiction.
5. Family Courts
a)
How should the records of child and family cases in the Family Courts or Regional
Trial Court designated by the Supreme Court to handle Family Court cases be treated and
dealt with? (3%)
b)
Under what conditions may the identity of parties in child and family cases be
divulged? (2%)
SUGGESTED ANSWER:
a)
The records of child and family cases in the Family Courts or Regional Trial Court
designated by the Supreme Court to handle Family Court cases shall be dealt with utmost
confidentiality. (Sec. 12, Family Courts Act of 1997) shall not be divulged unless necessary and with
authority of the judge. (Id.)
6. Metropolitan Trial Courts/Municipal Trial Courts
Q: In an action for unlawful detainer in the Municipal Trial Court (MTC), defendant X raised
in his Answer the defense that plaintiff A is not the real owner of the house subject of the
suit. X filed a counterclaim against A for the collection of a debt of P80.000 plus accrued
interest of P15,000 and attorneys fees of P20.000.
1.
Is X's defense tenable? [3%]
2.
Does the MTC have jurisdiction over the counterclaim? [12%] (1998 Bar Question)
SUGGESTEDANSWER:
1.
No. X's defense is not tenable if the action is filed by a lessor against a lessee. However, if
the right of possession of the plaintiff depends on his ownership then the defense is tenable.
2.
The counterclaim is within the jurisdiction of the Municipal Trial Court which does not
30
exceed P100,000.00, because the principal demand is POO,000.00, exclusive of interest and
Attorney's fees. (Sec. 33, B.P. Big. 129, as amended.)'. However, inasmuch as all actions of forcible
entry and unlawful detainer are subject to summary procedure and since the counterclaim is only
permissive, it cannot be entertained by the Municipal Court. (Secs. 1A(1) and 3(A) of Revised Rule
on Summary Procedure.)
Q: Filomeno brought an action in the Metropolitan Trial Court (MeTC) of Pasay City against
Marcelino pleading two causes of action. The first was a demand for the recovery of physical
possession of a parcel of land situated in Pasay City with an assessed value of P40,000; the
second was a claim for damages of P500,000 for Marcelinos unlawful retention of the
property Marcelino filed a motion to dismiss on the ground that the total amount involved,
which is P540,000, is beyond the jurisdiction of the MeTC. Is Marcelino correct? (4%)(2008
Bar Question)
SUGGESTED ANSWER:
No, Marcelino is not correct. Under Rep. Act No. 7691, Metropolitan Trial Courts and other
courts of the first level have been vested with exclusive original jurisdiction in all civil actions
which involved title to, or possession of real property or any interest therein where the assessed
value of the property or interest therein does not exceed P20,000.00, or in civil actions in Metro
Manila, where such assessed value does not exceed P50,000.00 exclusive of interest, damages of
whatever kind, attorneys fees, litigation expenses and costs. Pasay City where the action for
recovery of physical possession was filed, is part of Metro Manila and therefore has exclusive
jurisdiction over the parcel of land situated therein whose assessed value is P40,000.00. The claim
for damages of P500,000.00 for the unlawful retention of the land involved is not determinative of
the courts jurisdiction which is based on the nature of the action. The claim for damages of
P500,000.00 is just a consequence of the unlawful detention of the property subject of the action,
which should not be taken separately from the land. Filomeno has only one cause of action which is
the action for recovery of possession of the land against Marcelino, with damages.
Q: Plaintiff filed a complaint for a sum of money against defendant with the MeTC-Makati, the
total amount of the demand, exclusive of interest, damages of whatever kind, attorneys fees,
litigation expenses, and costs, being PI .000,000. In due time, defendant filed a motion to
dismiss the complaint on the ground of the MeTCs lack of jurisdiction over the subject
matter. After due hearing, the MeTC 11) ruled that the court indeed lacked jurisdiction over
the subject matter of the complaint; and (2) ordered that the case therefore should be
forwarded to the proper Regional Trial Court immediately.
Was the court's ruling concerning jurisdiction correct? Was the courts order to forward the
case proper? Explain briefly. (5%)(2004 Bar Question)
SUGGESTED ANSWER:
Yes. The MeTC did not have jurisdiction over the case because the total amount of the
demand exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and
costs, was PI M. Its jurisdictional amount at this time should not exceed P400,000.00 (Sec. 33 of B.P.
Big. 129, as amended by R.A. No. 7691).
The court's order to forward the case to the RTC is not proper. It should merely dismiss the
complaint. Under Sec. 3 of Rule 16, the court may dismiss the action or claim, deny the motion or
order the amendment of the pleading but not to forward the case to another court.
31
Q: A filed with the Metropolitan Trial Court of Manila an action for specific performance
against B, a resident of Quezon City, to compel the latter to execute a deed of conveyance
covering a parcel of land situated in Quezon City having an assessed value of P19,000.00. B
received the summons and a copy of the Complaint on 02 January 2003. On 10 January 2003,
B filed a Motion to Dismiss the Complaint on the ground of lack of jurisdiction contending
that the subject matter of the suit was incapable of pecuniary estimation. The court denied
the motion. In due time, B filed with the Regional Trial Court a Petition for Certiorari praying
that the said Order be set aside because the Metropolitan Trial Court had no jurisdiction
over the case.
On 13 February 2003, A filed with the Metropolitan Trial Court a motion to declare B in
default. The motion was opposed by B on the ground that his Petition for Certiorari was still
pending.
(a)
Was the denial of the Motion to Dismiss the Complaint correct?
(b)
Resolve the Motion to Declare the Defendant in Default. (2003 Bar Question)
SUGGESTED ANSWER:
(a)
The denial of the Motion to Dismiss the Complaint was not correct. Although the assessed
value of the parcel of land involved was P19,000.00, within the jurisdiction of the Metropolitan
Trial Court of Manila, the action filed by A for Specific Performance against B to compel the latter to
execute a Deed of Conveyance of said parcel of land-was not capable of pecuniary estimation and,
therefore, the action was within the jurisdiction of Regional Trial Court. (Russel v. Vestil, 304 SCRA
738 [1999]; Copioso v. Copioso, G.R. No. 149243, October 28, 2002; Cabutihan v. Landcenter
Construction, 383 SCRA 353 [2002]).
ALTERNATIVE ANSWER:
If the action affects title to or possession of real property then it is a real action and
jurisdiction is determined by the assessed value of the property. It is within the jurisdiction
therefore of the Metropolitan Trial Court.
(a)
The Court could declare B in default because B did not obtain a writ of preliminary
injunction or a temporary restraining order from the Regional Trial Court prohibiting the judge
from proceeding in the case during the pendency of the petition for certiorari. (Sec. 7 of Rule 65;
Diaz v. Diaz, 331 SCRA 302 [2000].
(b)
ALTERNATIVE ANSWER:
(b)
The Court should not declare B in default inasmuch as the jurisdiction of Metropolitan Trial
Court was put in issue in the Petition For Certiorari filed with the Regional Trial Court.
The Metropolitan Trial Court should defer further proceedings pending the result of such petition.
(Eternal Gardens Memorial Park Corporation v. Court of Appeals, 164 SCRA 421 [1988]).
Q: A, a resident of Malolos, Bulacan, died leaving an estate located in Manila, worth
P200,OOO.OO. In what court, taking into consideration the nature of jurisdiction and of
32
venue, should the probate proceeding on the estate of A be instituted? (2003 Bar Question)
SUGGESTED ANSWER:
The probate proceeding on the estate of A should be instituted in the Municipal Trial Court
of Malolos, Bulacan which has jurisdiction, because the estate is valued at P200,000.00, and is the
court of proper venue because A was a resident of Malolos at the time of his death. (Sec. 33 of BP
129 as amended by RA 7691; Sec. 1 of Rule 73).
Q: Josefa filed in the Municipal Circuit Trial Court of Alicia and Mabini, a petition for the
probate of the will of her husband, Martin, who died in the Municipality of Alicia, the
residence of the spouses. The probable value of the estate which consisted mainly of a house
and lot was placed at P95.000.00 and in the petition for the allowance of the will, attorney's
fees in the amount of P10,000.00, litigation expenses in the amount of P5,000.00 and costs
were included. Pedro; the next, of kin of Martin, filed an opposition to the probate of the will
on the ground that the total amount included in the relief of the petition is more than
P100,000.00, the maximum Jurisdictional amount for municipal circuit trial court. The court
overruled the opposition and proceeded to hear the case.
Was the municipal circuit trial court correct in its ruling? Why? (5%) (2001 Bar Question)
SUGGESTED ANSWER:
Yes, the Municipal Circuit Trial Court was correct in proceeding to hear the case. It has
exclusive jurisdiction in all matters of probate, both testate and intestate, where the value of the
estate does not exceed P100,000,00 (now (P200.000.00). The value in this case of P95.000.00 is
within its jurisdiction. In determining the jurisdictional amount, excluded are attorney's fees,
litigation expenses and costs; these are considered only for determining the filing fees. (B.P. Big.
129, sec. 33, as amended)
(a)
A brings an action in the Metropolitan Trial Court of Manila against B for the
annulment of an extrajudicial foreclosure sale of real property with an assessed value of
P50.000.00 located in Laguna. The complaint alleged prematurity of the sale for the reason
that the mortgage was not yet due. B timely moved to dismiss the case on the ground that the
action should have been brought in the Regional Trial Court of Laguna. Decide with reasons.
(3%)
(b)
A files an action in the Municipal Trial Court against B, the natural son of As father,
for the partition of a parcel of land located in Taytay, Rizal with an assessed value of
P20.000.00. B moves to dismiss the action on the ground that the case should have been
brought in the Regional Trial Court because the action is one that is not capable of pecuniary
estimation as it involves primarily a determination of hereditary rights and not merely the
bare right to real property.
Resolve the motion. (2%)
SUGGESTED ANSWER:
(a)
The motion should be granted. The Metropolitan Trial Court of Manila has no jurisdiction
because the action for the annulment of the extrajudicial foreclosure is not capable of pecuniary
estimation and is therefore under the jurisdiction of the Regional Trial Courts. (Russell v. Vestil 304
33
SCRA 738, (1999).

However, the action for annulment is a personal action and the venue depends on the residence of
either A or B. Hence, it should be brought in the Regional Trial Court of the place where either of the
parties resides.
(b)
The motion should be granted. The action for partition depends on a determination of the
hereditary rights of A and B, which is not capable of pecuniary estimation. Hence, even though the
assessed value of the land is P20,000.00, the Municipal Trial Court has no jurisdiction. (Russell v.
Vestil, supra)
Q: Albert forcibly entered and occupied the house and lot in Quezon City owned by his
neighbor Carissa. Carissa immediately sued Albert for recovery of the property. She also
claimed damages amounting to P100,000.00, other undetermined losses as a result of the
forcible entry, and attorneys fees of P25.000.00. Albert sets up affirmative defenses in his
answer without questioning Carissa's title over the property. (1995 Bar Question)
Is the case triable under summary procedure by the Metropolitan Trial Court of
Quezon City? Explain.
1.
2.
May Carissa present evidence of title? Explain.
Answer:
1.
Yes, because all actions for forcible entry and unlawful detainer are subject to summary
procedure irrespective of the amount of damages claimed, but the attorneys fees should not exceed
P20,000.00.
2.
Yes, but only to determine the question of possession. (BP 129 as amended). Albert may
raise the issue of lack of barangay conciliation prior to the filing of the complaint.
Q: For failure of the tenant, X, to pay rentals, A, the court-appointed administrator of the
estate of Henry Datu, decides to file an action against the former for the recovery of
possession of the leased premises located In Davao City and for the payment of the accrued
rentals In the total amount of P25,000.00. (1991 Bar Question)
Is prior referral to the Lupon under P.D. No. 1508 necessary?
(a)
Answer:
(a)
No, because the law applies only to disputes between natural person, and does not apply to
juridical person such as the estate of a deceased. [Vda. de Borromeo v. Pogoy, 126 SCRA 217)
(b)
What is the court of proper jurisdiction and venue of the Intended action?
Answer:
(b)
The Court of proper jurisdiction and venue is the Municipal Trial Court of Davao City, since
this is an action of illegal detainer and the leased premises are located in Dayao City.
Another Answer:
34
If the action filed is for recovery of possession or accion publiciana, the Regional Trial Court
of Davao City would have jurisdiction and the venue would also be in Davao City.
(c)
Supposing that referral is necessary, but the complaint is filed without such referral,
may it be dismissed on the ground of lack of jurisdiction?
Answer:
(c)
No, because lack of referral would merely render the action premature for failure to comply
with a condition precedent.
(d) If the case is filed with the Municipal Trial Court, in Cities (MTCC), is it covered by the
Rule on Summary Procedure?
Answer:
(d)
No, it is not covered by the Rule on Summary Procedure in any of the lower courts, because
the unpaid rentals exceed P20.000.00 (Sec. 1-A-l of Rule on Summary Procedure)
(e)
Supposing that A filed the complaint in the MTCC, and X filed an Answer wherein he
interposed a counterclaim for moral damages in the amount of P50.000 alleging that the
complaint is unfounded and malicious, would the MTCC have jurisdiction over the
counterclaim? If X did not set up the counterclaim, can he file a separate action to recover
the damages? Can A file a counterclaim to the counterclaim?
Answer:
(e)
No, because the counterclaim exceeds the jurisdictional amount of P20.000.00. Since the
claim for damages is not within the jurisdiction of the MTCC, it is not a compulsory counterclaim
and X can file a separate action in the RTC to recover the damages. [Reyes v. CA, 38 SCRA 130)
Another Answer:
The MTCC would have jurisdiction over the counterclaim if the excess of the amount thereof
over P20.000.00 is waived by X. (Agustin v. Bocalan, 135 SCRA 340)
Q: In an ejectment suit filed with the Metropolitan Trial Court of Manila, the judge rendered
a decision ordering the defendant (a) to vacate the property of the plaintiff and (b) to pay
the plaintiff the amount of P300 a month as reasonable compensation for the use of the land
starting from the time she occupied the same and until it is vacated by him; P10,000 as
unrealized earnings; P7,000 as moral damages; P5,000 as exemplary damages; and P3,000
as attorneys fees. The defendant contends that the decision is improper. Decide. (1989 Bar
Question)
Answer:
The Metropolitan Trial Court exceeded its jurisdiction in awarding damages, other than the
reasonable compensation for the use and occupation of the land, totalling P25,000.00. Hence, the
decision should be nullified as to the excess of P5,000 over the jurisdictional amount of P20,000.00
(Augustin vs. Bocalan, 135 SCRA 340)
35

Only rentals or reasonable compensation for the use and occupation of the premises and
attorneys fees may be awarded in an ejectment case.
Q: Andres filed a case for unlawful detainer before the Metropolitan Court of Manila against
Lito for refusing to vacate the leased premises after the expiration of his Lease Contract and
for non-payment of rentals. As counterclaim, Lito claimed moral damages in the amount of
P15,000.00.
(a)
May the Metropolitan Court proceed to try and decide the case including the claim of
P15,000.00? Explain.
(b)
In case Lito is adjudged to vacate the leased premises and to pay the accrued rentals
in arrears, how can he stay the execution of the judgment?
(c)
How does unlawful detainer differ from forcible entry? (1988 Bar Question)
Answer:
(a)
Yes, because the amount of the counterclaim, P15,000.00, is within the jurisdiction of the
Metropolitan Court which has also exclusive original jurisdiction over the unlawful detainer case.
(Agustin vs. Bocalan, 135 SCRA 340).
(b)
Lito must appeal; file a supercede as bond in an amount equivalent to the rents, damages
and costs accruing down to the time of the judgment; and deposit with the Regional Trial Court the
amount of the reasonable value of the use and occupation of the premises for the preceding month
or period at the rate determined by the judgment, on or before the tenth day of each succeeding
month or period. (Sec. 8 of Rule 70)
(c)
In unlawful detainer, the possession is legal at the beginning but subsequently becomes
illegal after the expiration or termination of the right to hold possession, whereas in forcible entry
the possession is illegal from the beginning because the entry was made by force, intimidation,
threat, strategy or stealth.
Q: A leased his commercial land and building in Malate, Manila, to B, a resident, of
Malolos, Bulacan. The Contract of Lease provided that in the event A" violates the Contract,
B may file suit in Manila. AY residence, and if B violates the Contract, A may sue B in
Malolos. B violated the Contract, entitling A to sue for ejectment.
If you were the lawyer of A, where and which court can you lawfully file the action for
ejectment? Explain. (1987 Bar Question)
Answer:
I can lawfully file the action for ejectment either in the Metropolitan Trial Court of Manila or
in the Municipal Trial Court of Malolos. Metropolitan and Municipal Trial Courts have exclusive
original jurisdiction over the cases of forcible entry and unlawful detainer or ejectment cases. The
stipulation in the contract of lease that if B violates the contract A may sue B in Malolos is
36
valid, because the location of the real property in such cases determines the venue of the action and
not jurisdiction over the subject matter. However, since the agreement as to venue is merely
permissive, as shown by the use of the word may, the action may also be filed in Manila where the
real property is located. (Villanueva vs. Masqueda, 155 SCRA 904).
Q: What courts have jurisdiction over the following cases filed in Metro Manila? (1997 Bar
Question)
(a)
An action for specific performance or. In the alternative, for damages In the amount
of P180,000.00
(b)
An action for a writ of injunction.
(c)
An action for replevin of a motorcycle valued at P150.000.00.
(d)
An action for Interpleader to determine who between the defendants is entitled to
receive the amount of P190.000.00 from the plaintiff.
(e)
A petition for the probate of a will involving an estate valued at P200.000.00.
Answer:
(a)
An action for specific performance or, in the alternative, for damages in the amount of
180,000.00falls within the jurisdiction of Metropolitan Trial Courts in Metro Manila. Although an
action for specific performance is not capable of pecuniary estimation, since the alternative demand
for damages is capable of pecuniary estimation, it is within the Jurisdiction of the Metropolitan Trial
Courts in Metro Manila. (Sec. 33 of BP 129 as amended by RA No. 7691; Cruz vs. Tan 87 Phil. 627).
(b)
An action for injunction is not capable of pecuniary estimation and hence falls within the
jurisdiction of the Regional Trial Courts.
(c)
An action for replevin of a motorcycle valued at 150,000.00 falls within the jurisdiction of
the Metropolitan Trial Courts in Metro Manila (Sec. 33 of BP 129. as amended by RA No. 7691)
(d)
An action for interpleader to determine who between the defendants is entitled to receive
the amount of P190,000.00 falls within the jurisdiction of the Metropolitan Trial Courts in Metro
Manila. {Id.; Makati Dev. Corp. v. Tanjuatco, 27 SCRA 401)
(e)
A petition for the probate of a will involving an estate valued at 200,000.00 falls within the
jurisdiction of the Metropolitan Trial Courts in Metro Manila (Id; Sec. 19(41 of BP 129, as
amended).
Additional Answer:
(b) An application for a writ of preliminary injunction may be granted by a Municipal Court in an
action of forcible entry and unlawful detainer? (Sec. 33 of BP 129; Day vs. RTC of Zamboanga. 191
SCRA 610).
37
F. Over small claims; cases covered by the Rules on Summary Procedure and Barangay
conciliation
Q: Mariano, through his attorney-in-fact, Marcos, filed with the RTC of Baguio City a
complaint for annulment of sale against Henry. Marcos and Henry both reside in Asin Road,
Baguio City, while Mariano resides in Davao City. Henry filed a motion to dismiss the
complaint on the ground of prematurity for failure to comply with the mandatory barangay
conciliation. Resolve the motion with reasons. (3%) (2009 Bar Question)
SUGGESTED ANSWER:
The motion to dismiss should be denied because the parties in interest, Mariano and Henry,
do not reside in the same city/municipality, or is the property subject of the controversy situated
therein. The required conciliation/mediation before the proper Barangay as mandated by the Local
Government Code governs only when the parties to the dispute reside in the same city or
municipality, and if involving real property, as in this case, the property must be situated also in the
same city or municipality.
Q: Albert forcibly entered and occupied the house and lot in Quezon City owned by his
neighbor Carissa. Carissa immediately sued Albert for recovery of the property. She also
claimed damages amounting to P100,000.00, other undetermined losses as a result of the
forcible entry, and attorneys fees of P25.000.00. Albert sets up affirmative defenses in his
answer without questioning Carissa's title over the property. (1995 Bar Question)
Is the case triable under summary procedure by the Metropolitan Trial Court of
Quezon City? Explain.
1.
2.
May Carissa present evidence of title? Explain.
Answer:
1.
Yes, because all actions for forcible entry and unlawful detainer are subject to summary
procedure irrespective of the amount of damages claimed, but the attorneys fees should not exceed
P20,000.00.
2.
Yes, but only to determine the question of possession. (BP 129 as amended). Albert may
raise the issue of lack of barangay conciliation prior to the filing of the complaint.
Q: Edison was charged with the crime of less serious physical injuries in the Metropolitan
Trial Court of Manila. Under the Revised Penal Code, the penalty prescribed for this offense
is arresto mayor, Aside from the recital of the facts constituting the offense, the information
alleged that the offended party suffered actual damages in the amount of P25,000. Instead of
submitting his counter-affidavits as required by the court, Edison filed a motion to quash
contending that the court had no jurisdiction over the case since the amount claimed as
damages exceeds the jurisdic-tional limit of trial courts in civil cases. If you were the judge
trying the case, what would you do with the-motion filed? How would you dispose of the
question of jurisdiction raised in the said motion? Explain. (1989 Bar Question)
Answer:
I would deny the motion to quash inasmuch as such a motion is not allowed in Summary
Procedure. The criminal case where the penalty prescribed by law for the offense charged does not
exceed six months of imprisonment is governed by Summary procedure.
38
On the question of jurisdiction, Summary Procedure applies irrespective of the civil liability
arising from the offense. Hence the fact that the civil liability exceeds P2Q,000 does not deprive the
Metropolitan Trial Court of jurisdiction. (Sec. B-4)
Q: An information for slight physical injuries was filed against Diego in the Municipal Trial
Court of Cainta, after which the judge directed him to appear and submit counter- affidavits
and those of his witnesses on September 12, 1989. Diego failed to appear on the said date.
Thereafter, the judge rendered judgment convicting Diego of the offense charged based on
the affidavits submitted by the complainant. Diego contends that this judgment is a nullity.
Decide. (1989 Bar Question)
Answer:
Diegos contention is correct. Under Summary Procedure rules, the failure of Diego to
appear and submit counter-affidavits on the date specified may be a ground for the judge to issue a
warrant for his arrest upon a finding of probable cause. However, the judge may not render a judgment of conviction of the offense charged based on the affidavits submitted by the complainant. He
should set the case for arraignment and trial if Diego pleads not guilty. Only after trial may the
judge render a judgment of conviction. (Secs. 10 and 11)
(a)
In what civil cases is the Summary Procedure before Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts applicable?
(b)
In what criminal cases is the Summary Procedure before the Metropolitan Courts,
Municipal Courts, and Municipal Circuit Trial Courts applicable?
Answer:
a)
Summary Procedure is applicable in the following civil cases:
(1)
Cases of forcible entry and unlawful detainer, accept where the question of ownership is
involved, or where the damages or unpaid rentals sought to be recovered by the plaintiff exceed
twenty thousand pesos (P20,000.00) at the time of the filing of the complaint;
(2)
All other civil cases, except probate proceedings, falling within the jurisdiction of the
abovementioned courts, where the total amount of the plaintiff s claim does not exceed ten
thousand pesos (P10,000.00), exclusive if interest and costs. (Sec. 1-A)
b)
It is applicable in the following criminal cases:

(1)
Violations of traffic laws, rules and regulations;
(2)
Violations of the rental law;
(3)
Violations of municipal or city ordinances;
(4)
All other criminal cases where the penalty prescribed by law for the offense
charged does not exceed six months of imprisonment, or a fine of one thousand
pesos (PI,000.00), or both, irrespective of other imposable penalties, accessory or
otherwise, or of the civil liability arising therefrom: Provided, however, that in
39
offenses involving damage to property through criminal negligence, this Rule shall
govern where the imposable fine does not exceed ten thousand pesos (P10,600 00).
(Sec. 1-B)
Through criminal negligence, this Rule shall govern where the imposable fine does
not exceed ten thousand pesos (P10,600 00). (Sec. 1-B)
G. Totality Rule
Q: Fe filed a suit for collection of P387,000 against Ramon in the RTC of Davao City. Aside
from alleging payment as a defense, Ramon in his answer set up counterclaims for P100,000
as damages and P30,000 as attorneys fees as a result of the baseless filing of the complaint,
as well as for P250,000 as the balance of the purchase price of the 30 units of air
conditioners he sold to Fe.
Does the RTC have jurisdiction over Ramons counterclaims, and if so, does he have to
pay docket fees therefor? (3%) (2008 Bar Question)
a)
SUGGESTED ANSWER:
Yes, the RTC has jurisdiction over Ramons counterclaims because they are all money
claims in which the totality rule applies in determining jurisdiction (Sec. 5[d], Rule 2, Rules of
Court).
a)
Ramon has to pay docket fees for his counterclaims whether the counterclaim is compulsory or
permissive in nature. Rule 141 of the Rules of Court has been amended to require payment of
docket fees for counterclaims and cross-claims whether compulsory or permissive.
[This amendment has not yet been implemented by the Supreme Court. The present practice still
exempts compulsory counterclaims from docket fees.]
Q: What do you understand by the totality rule in determining the jurisdiction of courts in
civil cases? Explain. (1989 Bar Question)
Answer:
Under the totality rule, where there are several claims or causes of action between the
same or different parties embodied in the same complaint, the amount of the demand shall be the
totality of the claims in all the causes of action, irrespective of whether the causes of action arose
out of the same or different transactions. (Sec. 33 of BP 129; Sec. 11 of Interim Rules)
Q: Marissa brought an action against Dely and Inday in one complaint before the Regional
Trial Court of Manila. As her first cause of action, Marissa alleges that Dely purchased from
her on various occasions truck tires worth PI2,000 but refused to pay the said amount
despite several demands. As her second cause of action, Marissa alleges that Inday likewise
purchased from her on several occasions truck tires worth P10,000 but refused to pay the
said amount despite repeated demands. The total amount o Marissas demands against the
two is P22,000. Both Dely and Inday now separately move to dismiss the complaint on the
ground that the RTC has no jurisdiction over the case. How would you resolve these
motions? Explain. (1989 Bar Question)
Answer:
40
I would grant said motions to dismiss, because the totality rule is subject to the rule on
permissive joinder, of parties. In this case, there is misjoinder of parties defendant inasmuch as the
claims against the two defendants are separate and distinct from each other and cannot be joined in
a single complaint. Neither claim falls within the jurisdiction of the Regional Trial Court. (Flores v.
Mallare-Philipps, 142 SCRA 377).
III. Civil Procedure

A. Actions
1. Meaning of ordinary civil actions
Q: Distinguish special proceeding from an ordinary action. (1996 Bar Question)
Answer:
A special proceeding is a remedy to establish the status or right of a party or a particular fact, while
an ordinary action is one by which one party prosecutes another for the enforcement or protection
of a right or the prevention or redress of a wrong. (Secs. 1 and 2 of Rule 2)
2. Meaning of special civil actions
1.
Distinguish civil actions from special proceedings. [3%]
SUGGESTED ANSWER:
1.
A civil action is one by which a party sues another for the enforcement or protection of a
right, or the prevention or redress of a wrong. (Sec. 3[a], Rule 1. 1997 Rules of Civil Procedure),
while a special proceeding is a remedy by which a party seeks to establish a Status, a right or a
particular fact. (Sec. 3[C]. Rule X, 1997 Rules of Civil Procedure.)
3. Civil actions versus special proceedings
4. Personal actions and real actions
Q: What do you mean by (a) real actions; and (b) personal actions? 2% (2006 Bar Question)
SUGGESTED ANSWER:
Real actions are actions affecting title to or possession of real property or an interest therein. All
other actions are personal actions (Sec. 1, Rule 4 of the 1997 Revised Rules of Civil Procedure).
5. Local and transitory actions
Q: On January 2,1989, Ernani purchased construction materials for his new building in
Calamba, Laguna, from a hardware store located in Batangas City and owned by Daniel. On
the same date and in payment of the materials, Emani issued a Metrobank check (Calamba
branch) for P500,000 which was drawn and signed by him in Calamba. Daniel deposited the
check with the Metrobank, Batangas City branch, but the same was dishonored for
insufficient funds. Despite several demands, Ernani failed to make good his check so that a
case for violation of B.P. 22 (The Bouncing Checks Law), after a preliminary investigation
41
thereof was conducted, was filed with the Regional Trial Court of Batangas City. Ernani
moved to quash the case on the ground of lack of jurisdiction, contending that the case
should have been filed with the Regional Trial Court of Calamba, Laguna, since the check was
drawn and signed in Calamba. How would you decide the motion? Explain. (1989 Bar
Question)
Answer:
Motion to quash is denied. Violation of the Bouncing Checks Law is a transitory or
continuing offense which may be validly tried either in the place where the check was issued or in
the place where the check was dishonored. Since the check in question was dishonored by the
Metrobank in Batangas City, the Regional Trial Court of Batangas City has jurisdiction over the case.
(People vs. Grospe, 157 SCRA 154)
6. Actions in rem, in personam and quasi in rem
Q: Distinguish: (1004 Bar Question)
1)
an action in rem from an action quasi in rem
2)
an action quasi in rem from an action in personam.
3)
an action in personam from a personal action.
4)
an action in rem from a real action.
5)
a personal action from a local action.
Answer:
1)
An action in rem is an action against all who might be minded to make an objection of any
sort against the right sought to be established, while an action quasi in rem is an action against an
individual although the purpose of the suit is to subject his interest in a particular property to the
obligation or lien burdening the property.
The judgment rendered in actions in rem binds the whole world, while the Judgment rendered in
actions quasi in rem is conclusive only between the parties. (Banco Espaol FUipinov. Palanca, 37
Phil. 921; Sandejas v. Robles, 81 Phil. 421.)
2)
An action quasi in rem, as stated, is an action against a person over a particular property or
claims relating thereto, while an action in personam is an action to establish a claim against a
person with a judgment that binds him personally.
3)
An action in personam, as stated, is an action against a person on the basis of his personal
liability while a personal action is an action where the plaintiff seeks the recovery of personal
property, the enforcement or resolution of a contract or the recovery of damages. (Hernandez v.
Rural Bank of Lucena, Inc., 81 SCRA 75 [1981]).
4)
An action in rem is as stated above, while a real action is an action affecting title to real
property or for the recovery of possession, or for partition or condemnation of, or foreclosure of a
mortgage on, real property. (Rule 4, sec. 2[a]).
42
5)
A personal action is as stated above, while a local action is that which must be brought in, a
particular place.
Plaintiff in a personal action may file it in the place where he resides or where the defendant
resides, while in a local action, plaintiff has no choice except to file the action in the place where the
property is located.
(a)
xxx
(b)
xxx
(c)
A suit for injunction is an action in rem. (2009 Bar Question)
SUGGESTED ANSWER:
FALSE .A suit for injunction is an action in personam. In the early case of Auyong Hian v.
Court of Tax Appeals (59 SCRA 110 [1974], it was held that a restraining order, like an injunction,
operates upon a person. It is granted in the exercise of equity jurisdiction and has no in rem effect
to invalidate an act done in contempt of an order of the court except where by statutory
authorization, the decree is so framed as to act in rem on property. (Air Materiel Wing Savings and
Loan Association, Inc. v. Manay, 535 SCRA356 [2007]).
B. Cause of action
1. Meaning of cause of action
a.
Distinguish action from cause of action. (2%)
b.
A sued B to recover P500, 000.00 based on a promissory note due and payable on
December 5,1998. The Complaint was filed on November 30, 1998, and summons was served
on B on December 7, 1998. B interposes a motion to dismiss on the ground that the
Complaint states no cause of action. If you were the judge, how would you rule on the
motion? (2%)
SUGGESTED ANSWER:
a.
An action is one by which a party sues another for the enforcement or protection of a right,
or the prevention or redress of a wrong. (Sec. 3(A), second par., Rule 1 of the 1997 Rules of Civil
Procedure.) A cause of action is the act or omission by which a party violates a right of another.
(Sec. 2, Rule 2 of the 1997 Rules) An action must be based on a cause of action. (Sec. 1, Rule 2 of the
1997 Rules)
b.
If I were the judge, I would grant the motion on the ground that the complaint states no
cause of action. When the complaint was filed, the promissory note was not yet due and payable
and hence the complaint was filed prematurely. This defect was not cured by the service of the
summons on the defendant after the date when the promissory note became due and payable.
43

(a)
xxx
(b)
Cause of action from action
Answer:
(a)
xxx
(b)
A cause of action is an act or omission of one party in violation of the legal right or rights of
the other (Maao Sugar Central vs. Barrios. 79 Phil. 606; Sec. 2 of new Rule 2), causing damage to
another. An action is an ordinary suit in a court of Justice by which one party prosecutes another for
the enforcement or protection of a right, or the prevention or redress of a wrong. (Section 1 of
former Rule 2).
The complaint alleged that the defendant acted in bad faith, arbitrarily, illegally,
wrongfully, and in violation of law. However, it did not contain any averment of facts
showing that defendant's acts were done in the manner alleged.
1)
Does the complaint state a cause of action? Explain.

X brought an action against Y for the annulment of the sale of certain shares of stock.
After the case was decided in favor of X, he filed another action for the recovery of the
dividends that had already accrued when the first action was filed.
2)
Is the second action for the recovery of the dividends proper?

Answer:
1)
No, because it does not state the ultimate facts constituting the plaintiffs cause of action.
The allegations that the defendant acted in bad faith, arbitrarily, illegally, wrongfully and in
violation of the law are mere conclusions of fact or conclusions of law. (Remitere vs. Vda. De Yulo,
16 SCRA 251)
Alternative Answer:
Yes, if the complaint alleges ultimate facts and states that the acts were done in bad faith,
arbitrarily, illegally, wrongfully and in violation of the law. The rule allows malice, intent,
knowledge or other condition of the mind to be averred generally. (Sec. 5 of Rule 8)
2)
No, because the recovery of the dividends is part of the cause of action for the annulment
of the sale of certain shares of stock and should have been claimed in the first action. The second
action constituted splitting a single cause of action.
2. Right of action versus cause of action
3. Failure to state a cause of action
44
Q: Luis is the owner of a five-door apartment unit three doors of which he has leased to Fe,
Gary , and Marilou for a monthly rental of P250.00 per door. Fe, Gary, and Marilou have been
his tenants for close to thirty years at that rate. He occupies the fourth door as his own
residence. The fifth door is vacant. Alleging that he needs to repossess all three doors for the
use of his son, Fern, who had recently gotten married, and who does not allegedly have a
residence of his own, he sued, after the requisite letters to vacate, Fe, Gary, and Marilou
before the Metropolitan Trial Court for unlawful detainer. Fe, Gary, and Marilou answered
the complaint and set up the defense that ejectment was not proper because the fifth door
was available for Ferns residence. At the trial, they likewise endeavored to prove that Fern
has in fact a residence of his own and that the suit was Luis mere strategy to force them to
agree to a rental hike of P1,500.00 a door, in violation of the rental laws. The trial judge,
however, decreed ejectment. On appeal to the Regional Trial Court, Fe, Gary, and Marilou
alleged that the decision was null and void, for lack of jurisdiction, there having been no
prior confrontation among the parties before the lupong tagapayapa pursuant to
Presidential Decree No. 1508. Luis countered that the jurisdictional question not having
been raised below, it cannot be raised for the first time on appeal.
(a)
Can Fe, Gary, and Marilou validly challenge the 65 jurisdiction of the Metropolitan
Trial Court? Explain.
(b)
What is the effect of Luis failure to resort to the conciliation process before the
lupong togapayapa provided for in P.D. No. 1508? Explain. (1988 Bar Question)
Answer:
(a)
No, because lack of prior confrontation among the parties before the Lupong Tagapayapa
pursuant to Presidential Decree No. 1508 does not affect the jurisdiction of the Metropolitan Trial
Court over the action for unlawful detainer. (It is presumed that the complaint was filed within one
year from the demand to vacate.) (Rayales vs. I AC, 127 SCRA 470)
Moreover, by answering the complaint and setting up their defense without objecting to the
jurisdiction of the court, they are estopped from raising the question of jurisdiction. (Tijam vs.
Sabonghanoy, 23 SCRA 29)
(b)
Luis failure to resort to the conciliation process affects the sufficiency of his cause of action
and makes his complaint subject to dismissal on the ground of lack of cause of action or
prematurity. (Rayales vs. IAC, supra)
4. Test of the sufficiency of a cause of action
A.
xxx
B.
Rolando filed a petition for declaration of the nullity of his marriage to Carmela
because of the alleged psychological incapacity of the latter. After trial, the court rendered
judgment dismissing the petition on the ground that Rolando failed to prove the
psychological incapacity of his wife. The judgment having become final, Rolando filed
another petition, this time on the ground that his marriage to Carmela had been celebrated
without a license. Is the second action barred by the judgment in the first? Why (2%)
SUGGESTED ANSWER:
45
B.
No, the second action is not barred by the judgment in the first because they are different
causes of action. The first is for annulment or marriage on the ground of psychological incapacity
under Article 36 of the Family Code, while the second is for declaration of nullity of the marriage in
view of the absence of a basic requirement, which Is a marriage license. [Arts. 9 and 35(3), Family
Code]. They are different causes of action because the evidence required to prove them are not the
same. [Pagsisfhan v. Court of Appeals, 95 SCRA 540 (1980) and other cases].
Q: Agustin, a 21-year old son of the spouses Edgardo and Gloria, was a paying passenger who
suffered serious physical injuries when the bus he was riding fell off a cliff due to the
recklessness of its driver. The bus belonged to the Inter-City Transit.
The spouses, together with Agustin, sued for damages. After Inter-City Transit filed its
answer, Agustin, in consideration of P10,000, executed a Release of Claim. On the basis
thereof, Inter-City filed a motion to dismiss alleging that the claim had already been paid and
released.
Plaintiff-spouses opposed the motion and asserted that their son was totally dependent on
them for support; that his hospitalization and other medical expenses were shouldered by
them; that they were not even consulted on the Release of Claim; and, that the Release of
Claim could not operate as a valid ground for dismissal because it did not have the
conformity of all the parties since only their son, Agustin, signed it. Decide the motion to
dismiss. (1989 Bar Question)
Answer:
Motion to dismiss is granted. The contract of carriage was between Agustin, who was of
legal age, and Inter-City Transit. Hence, the Release of Claim" executed by him is valid. (Baliwag
Transit vs. Court of Appeals, January 31, 1989).
Motion to dismiss is granted only with respect to Agustin. The parents of Agustin have a
cause of action against Inter-City Transit to the extent of the expenses incurred by them due to the
recklessness of its driver.
5. Splitting a single cause of action and its effects
a.
What is the rule against splitting a cause of action and its-effect on the respective
rights of the parties for failure to comply with the same? (2%)
b.
A purchased a lot from B for PI,500,000.00. He gave a down payment of P500,000.00,
signed a promissory note payable thirty days after date, and as a security for the settlement
of the obligation, mortgaged the same lot to B. When the note fell due and A failed to pay, B
commenced suit to recover from A the balance of P1,000,000.00. After securing a favorable
judgment on his claim, B brought another action against A before the same court to foreclose
the mortgage. A now files a motion to dismiss the second action on the ground of bar by prior
judgment. Rule on the motion. (2%)
SUGGESTED ANSWER:
46
a.
The rule against splitting a cause of action and its effect are that if two or more suits are
instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in
any one is available as a ground for the dismissal of the others. (Sec. 4, Rule 2 of the 1997 Rules)
b.
The motion to dismiss should be granted. When B commenced suit to collect on the
promissory note, he waived his right to foreclose the mortgage. B split his cause of action.
Q: Give the effects of the following:
1.
Splitting a single cause of action; and [3%] (1998 Bar Question)
2.
xxx
SUGGESTED ANSWER:
1.
The effect of splitting a single cause of action is found in the rule as follows: If two or more
suits are instituted on the basis of the same cause of action, the filing of one or a judgment on the
merits in any one is available as a ground for the dismissal of the others. (Sec. 4 of Rule 2, 1997
Rules of Civil Procedure.)
2.
xxx
Q: Raphael, a warehouseman, filed a complaint against V Corporation. X Corporation and Y

Corporation to compel them to interplead. He alleged therein that the three corporations
claimed title and right of possession over the goods deposited in his warehouse and that he
was uncertain which of them was entitled to the goods. After due proceedings, judgment was
rendered by the court declaring that X Corporation was entitled to the goods. The decision
became final and executory.
Raphael filed a complaint against X Corporation for the payment of PI00,000.00 for storage
charges and other advances for the goods. X Corporation filed a motion to dismiss the
complaint on the ground of res judicata. X Corporation alleged that Raphael should have
incorporated in his complaint for interpleader his claim for storage fees and advances and
that for his failure he was barred from interposing his claim. Raphael replied that he could
not have claimed storage fees and other advances in his complaint for interpleader because
he was not yet certain as to who was liable therefore.
Resolve the motion with reasons. (4%)
SUGGESTED ANSWER:
The motion to dismiss should be granted. Raphael should have incorporated in his
complaint for interpleader his claim for storage fees and advances. They are part of Raphaels cause
of action which he may not split. The filing of the interpleader is available as a ground for the
dismissal of the second case. (Sec. 4, Rule 2, 1997 Rules of Civil Procedure.) It is akin to a
compulsory counterclaim which, if not set up, is barred. (Sec. 2, Rule 9, 1997 Rules of Civil
Procedure). The law also abhors the multiplicity of suits; hence, the claim for storage fees should
have been made part of his cause of action in the interest of complete adjudication of the
controversy and its incidents. [Arreza v. Diaz, 364 SCRA 88 [2001]).
ALTERNATIVE SUGGESTED ANSWER:
47
The motion to dismiss should not be granted. Raphael not being a party to the case cannot
file a counter complaint. A complaint for interpleader which is a special civil action is merely an
action for the parties to interplead among themselves. The claim for storage fees is a separate and
distinct cause of action. It is an ordinary action for collection which cannot be joined in a special
civil action. (Sec. 5(b) Rule 2)
6. Joinder and mis-joinder of causes of action
Q: Distinguish joinder of causes of action from joinder of parties. (1996 Bar Question)
Answer:
Joinder of causes of action may be made in the same complaint by one party against
another; or by or against several parties. In cases of joinder of causes of action by one party against
another, the totality of the demand determines the Jurisdiction of the court.
But in cases of Joinder of causes of action by or against several parties, the right to relief
must arise out of the same transaction or series of transactions and there must be a common
question of fact or law. If these requisites are present, the totality of the demand determines the
jurisdiction of the court. {Sec. 6 of Rule 3; Flores vs. Mallare-Phiilips, 144 SCRA 377)
Q: The complaint filed before the Regional Trial Court of Manila states two (2) causes of
action, one for recission of contract and the other for the recovery of One Hundred Thousand
Pesos (PI00.000.00), both of which arose out of the same transaction.
Is the joinder of the two (2) causes of action proper? Explain. (1996 Bar Question)
Answer:
Yes, since the first cause of action for rescission of contract falls within the jurisdiction of
the Regional Trial Court of Manila, because the subject is not capable of pecuniary estimation, and
the second cause of action for recovery of P100,000.00 is within the jurisdiction of a lower court
and arose out of the same transaction, both may be joined in the complaint filed with the Regional
Trial Court. {Sec. 5 of Rule 2)
a.
What is the rule on joinder of causes of action? (2%)
b.
A secured two loans from B, one for P500.000.00 and the other for P1,000,000.00,
payable on different dates. Both have fallen due. Is B obliged to file only one complaint
against A for the recovery of both loans? Explain. (2%)
SUGGESTED ANSWER:
a.
The rule on joinder of causes of action is that a party may in one pleading assert, in the
alternative or otherwise, as many causes of action as he may have against an opposing party,
provided that the rule on joinder of parties is complied with; the joinder shall not include special
civil actions or actions governed by special rules, but may include causes of action pertaining to different venues Or jurisdictions provided one cause of action falls within the jurisdiction of a Regional
Trial Court and venue lies therein; and the aggregate amount claimed shall be the test of
jurisdiction where the claims in all the causes of action are principally for the recovery of money.
(Sec. 5, Rule 2 of the 1997 Rules)
48
b.
No. Joinder is only permissive since the loans are separate loans which may be governed by
the different terms and conditions. The two loans give rise to two separate causes of action and may
be the basis of two separate complaints.
Q: Give the effects of the following:
1.
xxx
2.
Non-joinder of a necessary party. [2%] (1998 Bar Question)
SUGGESTED ANSWER:
1.
xxx
2.
The effect of the non-joinder of a necessary party may be stated as follows: The court may
order the inclusion of an omitted necessary party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion without justifiable cause is a waiver of the
claim against such party. The court may proceed with the action but the judgment rendered shall be
without prejudice to the rights of such necessary party. (Sec. 9 of Rule 3, 1997 Rules of Civil
Procedure.)
Q: Perry is a resident of Manila, while Ricky and Marvin are residents of Batangas City. They
are the co-owners of a parcel of residential land located in Pasay City with an assessed value
of P100,000.00. Peny borrowed PI00,000.00 from Ricky which he promised to pay on or
before December 1, 2004. However, Perry failed to pay his loan. Perry also rejected Ricky
and Marvin's proposal to partition the property.
Ricky filed a complaint against Perry and Marvin in the Regional Trial Court of Pasay City for
the partition of the property. He also incorporated in his complaint his action against Perry
for the collection of the latter's PI00,000.00 loan, plus interests and attorney's fees.
State with reasons whether it was proper for Ricky to join his causes of action in his
complaint for partition against Perry and Marvin in the Regional Trial Court of Pasay City.
(5%)(2005 Bar Question)
SUGGESTED ANSWER:
It was not proper for Ricky to join his causes of action against Perry in his complaint for
partition against Perry and Marvin. The causes of action may be between the same parties, Ricky
and Perry, with respect to the loan but not with respect to the partition which includes Marvin. The
joinder is between a partition and a sum of money, but the partition is a special civil action under
Rule 69, which cannot be joined. (Sec. 5, Rule 2, 1997 Rules of Civil Procedure.}. Also, the causes of
action pertain to different venues and jurisdictions. The case for a sum of money pertains to the
municipal court and cannot be filed in Pasay City because the plaintiff is from Manila while Ricky
and Marvin are from Batangas City. (Sec. 5, Rule 2, 1997 Rules of Civil Procedure.)
Q: Raphael, a warehouseman, filed a complaint against V Corporation. X Corporation and Y
Corporation to compel them to interplead. He alleged therein that the three corporations
claimed title and right of possession over the goods deposited in his warehouse and that he
was uncertain which of them was entitled to the goods. After due proceedings, judgment was
49
rendered by the court declaring that X Corporation was entitled to the goods. The decision
became final and executory.
Raphael filed a complaint against X Corporation for the payment of PI00,000.00 for storage
charges and other advances for the goods. X Corporation filed a motion to dismiss the
complaint on the ground of res judicata. X Corporation alleged that Raphael should have
incorporated in his complaint for interpleader his claim for storage fees and advances and
that for his'failure he was barred from interposing his claim. Raphael replied that he could
not have claimed storage fees and other advances in his complaint for interpleader because
he was not yet certain as to who was liable therefore.
SUGGESTED ANSWER:
The motion to dismiss should be granted. Raphael should have incorporated in his
complaint for interpleader his claim for storage fees and advances. They are part of Raphaels cause
of action which he may not split. The filing of the interpleader is available as a ground for the
dismissal of the second case. (Sec. 4, Rule 2, 1997 Rules of Civil Procedure.) It is akin to a
compulsory counterclaim which, if not set up, is barred. (Sec. 2, Rule 9, 1997 Rules of Civil
Procedure). The law also abhors the multiplicity of suits; hence, the claim for storage fees should
have been made part of his cause of action in the interest of complete adjudication of the
controversy and its incidents. [Arreza v. Diaz, 364 SCRA 88 [2001]).
The motion to dismiss should not be granted. Raphael not being a party to the case cannot
file a counter complaint. A complaint for interpleader which is a special civil action is merely an
action for the parties to interplead among themselves. The claim for storage fees is a separate and
distinct cause of action. It is an ordinary action for collection which cannot be joined in a special
civil action. (Sec. 5(b) Rule 2)
Q: A, the surviving husband of B executed in favor of C a deed entitled Contract of Sale
a Retro over a certain parcel of land registered under the Torrens System in which the
owner is described as A, married to B. Subsequently, A sued C for reformation of the
contract, alleging that what was agreed upon was really a mortgage and not a sale a retro.
AY complaint was dismissed for failure to prosecute, however, and the dismissal became
final.
A year later, the children of A and B sued 4tC for the annulment of the Contract of sale a
Retro, alleging that the subject piece of land was acquired by their parents during their
marriage, hence their father had no right to include in the sale the children's interest in the
property as heirs of their mother, such children not having consented to the sale.
C" moved to dismiss the complaint on the ground of bar by former judgment.
Resolve the motion to dismiss. Explain. (1987 Bar Question)
Answer:
Motion to dismiss denied. There is no bar by former judgment because there is no identity
of causes of action. The cause of action of the children of A and B is different from the cause of
action of A. A" had no right to sell the parcel of land inasmuch as the same was the conjugal
50
property of A" and B". A could legally sell only his conjugal share of said property and could not
legally sell the conjugal share of his deceased wife which was inherited by * their children without
their consent.
C. Parties to civil actions
1. Real parties-in-interest; indispensable parties; representatives as parties; necessary
parties; indigent parties; alternative defendants
Q: Isagani drove the car of his father, Pedro, and left it in the parking area of the Fairview
motel where he was a guest. Isagani entrusted the key of the car to a security guard hired by
the Prime Resort Company, the owner/operator of the motel. Emilio, pretending to be the
brother of Isagani, got the key from the security guard and drove the car away.
The car was never recovered. Later, Pedro sued Prime Resort for the value of the
carnapped vehicle plus damages. Prime Resort sets up the defense that Pedro has no interest
in the case, hence, has no cause of action, as he was not the guest of the motel but his son,
Isagani. Is the defense tenable? Explain. (1989 Bar Question)
Answer:
No, because Pedro is the owner of the car which was carnapped due to the fault or
negligence of the security guard of the owner/operator of the motel in which his son Pedro was a
guest. Hence, Pedro is a real party in interest. (Dilson Enterprises vs. IAC, Feb. 27, 1989).
2. Compulsory and Permissive Joinder of parties
Q: Distinguish joinder of causes of action from joinder of parties. (1996 Bar Question)
Answer:
Joinder of causes of action may be made in the same complaint by one party against
another; or by or against several parties. In cases of joinder of causes of action by one party against
another, the totality of the demand determines the Jurisdiction of the court.
But in cases of Joinder of causes of action by or against several parties, the right to relief
must arise out of the same transaction or series of transactions and there must be a common
question of fact or law. If these requisites are present, the totality of the demand determines the
jurisdiction of the court. {Sec. 6 of Rule 3; Flores vs. Mallare-Phiilips, 144 SCRA 377)
Q: A filed an action against B, driver of the truck. C. owner of said truck, and D, insurer of the
truck, for damages when the truck rammed his car. A and D entered into a compromise
agreement upon an amount lower than that sued upon by A against all three defendants.
Accordingly, the court dismissed the case against D. B and C moved to dismiss the case
against them on the ground that, being indispensable parties under a common cause of
action, non-inclusion of D would not make the case prosper.
Are the defendants indispensable parties? How would you resolve the motion. (1996 Bar
Question)
Answer:
I would deny the motion. D is not an indispensable party. The liability of the insurer D is
51
based on the contract of insurance whereas the liability of B and C is based on quasi-delict. Hence,
the plaintiff does not have a common cause of action against all the defendants and the dismissal of
the complaint against D will not affect the complaint against B and C. (Inson vs. Court of Appeals.
239 SCRA 58)
A.
P sued A and B in one complaint in the RTC- Manila, the cause of action
against A being on an overdue promissory note for P300,000.00 and that against B
being on an alleged balance of P300.000.00 on the purchase price of goods sold on
credit. Does the RTC-Manila have jurisdiction over the case? Explain. (3%)
B.
xxx
SUGGESTED ANSWER:
A.
No, the RTC-Manila has no jurisdiction over the case. A and B could not be joined as
defendants in one complaint because the right to relief against both defendants do not
arise out of the same transaction or series of transactions and there is no common
question of law or fact common to both. (Rule 3, sec. 6). Hence, s eparate complaints will
have to be filed and they would fall under the jurisdiction of the Metropolitan Trial
Courts. [Flores v. Mall a re-Philipps, 144 SCRA 377 (1986)].
3. Misjoinder and Non-joinder of parties
Q: X was driving the dump truck of Y along Cattleya Street in Sta. Maria, Bulacan. Due to his
negligence, X hit and injured V who was crossing the street: Lawyer L, who witnessed the
incident, offered his legal services to V.
V, who suffered physical injuries including a fractured wrist bone, underwent surgery to
screw a metal plate to his wrist bone. On complaint of V, a criminal case for Reckless
Imprudence Resulting in Serious Physical Injuries was filed against X before the Municipal
Trial Court (MTC) of Sta. Maria. Atty. L, the private prosecutor, did not reserve the filing of a
separate civil action.
V subsequently filed a complaint for Damages against X and Y before the Regional Trial
Court of Pangasinan in Urdaneta where he resides. In his "Certification against Forum
Shopping V made no mention of the pendency of the, criminal case in Sta. Maria.
A.
xxx
B.
xxx
C.
Suppose only X was named as defendant in the complaint for damages, may he move
for the dismissal of the complaint for failure of V to implead Y as an indispensable party?
(2%)
SUGGESTED ANSWER:
No, X may not move for dismissal of the civil action for damages on the contention that Y is
an indispensable party who should be impleaded. Y is not an indispensable party but only a
necessary party. Besides, non-joinder and' misjoinder of parties is not a ground for dismissal of
actions (Rule 3, Sec. 11, Rules of Court.)
52
Q: Florencio sued Guillermo for partition of a property they owned in common. Guillermo
filed a motion to dismiss the complaint because Florencio failed to implead Hernando and
Inocencio, the other co-owners of the property. As judge, will you grant the motion to
dismiss? Explain. (3%) (2009 Bar Question)
SUGGESTED ANSWER:
NO, because the non-joinder of parties is not a ground for dismissal of action (Rule 3, Sec
11). The motion to dismiss should be denied.
4. Class suit
Q: Distinguish a derivative suit from a class suit. (2005 Bar Question)
SUGGESTED ANSWER:
A derivative suit is a suit in equity that is filed by a minority shareholder in behalf of a
corporation to redress wrongs committed against it, for which the directors refuse to sue, the real
party in interest being the corporation itself (Lim v. Lim-Yu, 352 SCRA 216 [2001]). A class suit is
filed in behalf of many persons so numerous that it is impracticable to join all as parties. (Sec. 12,
Rule 3, 1997 Rules of Civil Procedure).
Q: Four hundred residents of Barrio Ramos Initiated a class action suit through Albert, a
former mayor of the town, to recover damages sustained due to their exposure to toxic
waste and fumes emitted by the cooking gas plant of Top Fuel Gas Corporation located in the
town.
Is the class suit proper? (1994 Bar Question)
Answer:
No. The class suit is not proper. Each plaintiff suffered separate and distinct damages from
their exposure to the toxic waste and fumes emitted by the cooking gas plant. Each of them has to
prove his or her damages. (Newsweek. Inc. v. Intermediate Appellate Court, 142 SCRA 171 [1986];
Heirs of passengers of Doha Paz, March 3. 1988).
Q: An airplane carrying 200 passengers crashed somewhere in the jungles of Agusan. All the
passengers and crew perished. Twenty (20) relatives of the fatalities filed for themselves
and in behalf of the relatives of all those who perished in the mishap a class suit for damages
totaling P5 Million against the airline. The propriety of the class suit is questioned by the
defendant. Resolve the issue. (1991 Bar Question)
Answer:
A class suit is not proper in this case because there is no common or general interest in the
subject matter of the controversy. Each of the plaintiffs has a separate claim for damages.
(Newsweek v. IAC, 142 SCRA 171; Administrative Matter No. 88-1-646-0 on Request of Plaintiffs,
heirs of passengers of the Dona Paz, March 3, 1988.)
5. Effect of death of party-litigant
Q: Cresencio sued Dioscoro for collection of a sum of money. During the trial, but after the
53
presentation of plaintiffs evidence,-Dioscoro died. Atty. Cruz, Dioscoros counsel, then filed a
motion to dismiss the action on the ground of his clients death. The court denied the motion
to dismiss and. instead, directed counsel to furnish the court with the names and addresses
of Dioscoros heirs and ordered that the designated administrator of Dioscoros estate be
substituted as representative party.
After trial, the court rendered judgment in favor of Cresencio. When the decision had
become final and executory, Cresencio moved for the issuance of a writ of execution against
Dioscoros estate to enforce his judgment claim. The court issued the writ of execution. Was
the courts issuance of the writ of execution proper? Explain. (2%)
SUGGESTED ANSWER:
NO, the trial court's issuing the writ of execution is not proper and in excess of jurisdiction,
since the judgment obligor is already dead when the writ was issued. The judgment for money may
only be enforced against the estate of the deceased defendant in the probate proceedings, by way of
a claim filed with the probate court in accordance with Rule 86 of the Rules of Court.
Cresencio should enforce that judgment in his favor in the settlement proceedings of the
estate of Dioscoro as a money claim in accordance with Rule 86 or Rule 88 as the case may be.
Q: PJ engaged the services of Atty. ST to represent him in a civil case filed by OP against him
which was docketed as Civil Case No. 123. A retainership agreement was executed between
PJ and Atty. ST whereby PJ promised to pay Atty. ST a retainer sum of P24,000.00 a year and
to transfer the ownership of a parcel of land to Atty. ST after presentation of PJ's evidence. PJ
did not comply with his undertaking. Atty. ST filed a case against PJ which was docketed as
Civil Case No. 456. During the trial of Civil Case No. 456, PJ died.
i)
Is the death of PJ a valid ground to dismiss the money claim of Atty. ST in Civil Case
No. 456? Explain. (2%)
ii)
Will your answer be the same with respect to the real property being claimed by Atty.
ST in Civil Case No. 456? Explain. (2%) (2000 Bar Question)
SUGGESTED ANSWER:
(i)
No. Undo: Sec. 20. Rule 3, 1997 Rules of Civil Procedure, when the action is for recovery of
money arising from contract, express or Implied, and the defendant dies before entry of final
judgment in the court in which the action is pending at the time of such death, it shall not be
dismissed but shall instead be allowed to continue until entry of final Judgment. A favorable
judgment obtained by the plaintiff shall be enforced in the manner especially provided in the Rules
for prosecuting claims against the estate of a deceased person.
(ii)
Yes, my answer is the same. An action to recover real property In any event survives the
death of the defendant (Sec. 1, Rule 87, Rules of Court). However, a favorable Judgment may be
enforced in accordance with Sec. 7(b) Rule 39 (1997 Rules of Civil Procedure) against the executor
or administrator or successor in interest of the deceased.
a.
What is the effect of the death of a party upon a pending action? (2%)
b.
When A (buyer) failed to pay the remaining balance of the contract price after it
became due and demand- able, B (seller) sued him for collection before the RTC. After both
54
parties submitted their respective evidence, A perished in a plane accident. Consequently,

his heirs brought an action for the settlement of his estate and moved for the dismissal of the
collection suit.
1.
Will you grant the motion? Explain. (2%)
2.
Will your answer be the same if A died while the case is already on appeal to the
Court of Appeals? Explain. (2%)
3.
In the same case, what is the effect if B died before the RTC has rendered judgment?
(2%)
SUGGESTEDANSWER:
a.
When the claim in a pending action is purely personal, the death of either of the parties
extinguishes the claim and the action is dismissed. When the claim is not purely personal and is not
thereby extinguished, the party should be substituted by his heirs or his executor or administrator.
(Sec. 16, Rule 3, 1997 Rules) If the action is for recovery of money arising from contract, express or
implied, and the defendant dies before entry of final judgment in the court in which the action was
pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue
until entry of final judgment. A favorable judgment obtained by the plaintiff shall be enforced in the
manner provided in the rules for prosecuting claims against the estate of a deceased person. (Sec.
20, Rule 3, 1997 Rules)
b.
1. No, because the action will not be dismissed but shall instead be allowed to continue
until entry of final judgment. (Id.)
2. No. If A died while the case was already on appeal in the Court of Appeals, the case will
continue because there is no entry yet of final judgment. (Id.)
3. The effect is the same. The action will not be dismissed but will be allowed to continue
until entry of final judgment. (Id.)
Q: After termination of trial on the merits, and as the trial Judge was about to finish his
decision dismissing plaintiffs suit for payment of a purported P369.000.00 loan, the
defendant died. His counsel accordingly filed with the court a notice of defendant's death.
Simultaneously, he moved that plaintiffs suit be dismissed, to be thereafter pursued as a
money claim in the proceeding for the settlement of defendants estate. The Judge denied the
motion to dismiss on the ground that there is no need for any further proceeding since he is
going to dismiss the case anyway in a forthcoming decision. Three (3) days later, the
decision dismissing the case was promulgated.
Did the judge act correctly? Explain your answer. (1992 Bar Question)
Suggested Answer:
No, because in an action for the recovery of money, if the defendant dies before a final
judgment is rendered by the Regional Trial Court, the action shall be dismissed and prosecuted as a
money claim. (Rule 3) The fact that the Judge was ready to render a decision dismissing the case
does not prevent the application of the rule.
55
Yes, the Judge acted correctly in deciding the case, because the defendant died after
termination of the trial on the merits. To dismiss the case and require the parties to present their
evidence all over again before the probate court would cause unnecessary expense and delay. The
plaintiff may appeal from the decision and if the judgment is reversed, the judgment entered would
then be filed as a proven money Claim with the probate court.
Q: (a) Plaintiff sued to recover an unpaid loan and was awarded P333,000.00 by the
Regional Trial Court of Manila. Defendant did not appeal within the period allowed by law.
He died six days after the lapse of the period to appeal. Forthwith, a petition for the
settlement of his estate was properly filed with the Regional Trial Court of Pampanga where
an inventory of all his assets was filed and correspondingly approved. Thereafter, plaintiff
filed a motion for execution with the Manila court, contending therein that the motion was
legally justified because the defendant died after the judgment in the Manila court had
become final. Resolve the motion and state your reasons. (1992 Bar Question)
Suggested Answer:
a)
Motion for execution denied.
Although the defendant died after the judgment had become final and executory, it cannot
be enforced by a writ of execution against the estate of the deceased which is in custodia legis. The
judgment should be filed as a proven money claim with the Regional Trial Court of Pampanga.
[Paredes v. Moya, 61 SCRA 527)
(b)
Under the same set of facts as (a), a writ of execution was issued by the Manila court
upon proper motion three days after the lapse of the period to appeal. The corresponding
levy on execution was duly effected on defendants parcel of land worth P666.000.00 a day
before the defendant died. Would it be proper, on motion, to lift the levy on defendants
property? State the reasons for your answer.
Suggested Answer:
b)
No, since the levy on execution was duly effected on defendants parcel of land a day before
the defendant died, it was valid. The land may be sold for the satisfaction of the judgment and the
surplus shall be accounted for by the sheriff to the corresponding executor or administrator. (Sec.
7-C of Rule 39)
56
(a)
Rule on the issue.
Answer:
(a)
704)
(b)
Answer:
(b)
(c)
Answer:
(c)
D. Venue
1. Venue versus jurisdiction
Q: Distinguish jurisdiction from venue? 2% (2006 Bar Question)
SUGGESTED ANSWER:
Jurisdiction is the power of the Court to decide a case on the merits, while venue refers to the place
where the suit may be filed. In criminal actions, however, venue is jurisdictional. Jurisdiction may
not be conferred upon a court by consent through waiver, but venue may be waived except in
criminal cases.
2. Venue of real actions
Q: Angela, a resident of Quezon City, sued Antonio, a resident of Makati City before the RTC of
Quezon City for the reconveyance of two parcels of land situated in Tarlac and Nueva Ecija,
respectively. May her action prosper? (3%)
SUGGESTED ANSWER:
a)
Yes, the action may prosper because improper venue can be waived; and there appears to
be no objection from the defendant. An action for reconveyance of parcels of land partakes of an
action to recover title to or possession of such land; hence a real action which should be filed in the
place where the parcels of land are situated in Tarlac and Nueva Ecija.
57
b) Assuming that the action was for foreclosure on the mortgage of the same parcels of
land, what is the proper venue for the action? (3%)
SUGGESTED ANSWER:
b)
If the action was for foreclosure of mortgage, the action may be filed either in Tarlac or Nueva
Ecija where any of the parcels of land is situated. Only one action for foreclosure need be filed as
only one contract of mortgage had been constituted. (Bank of P.I. v. Green, 57 Phil. 712 [1932]).
3. Venue of personal actions
Q: A resident of Lingayen, Pangasinan sued X. a resident of San Fernando. La Union in the
Regional Trial Court (RTC) of Quezon City for the collection of a debt of PI million.
X did not file a motion to dismiss for improper venue but filed his answer raising therein
improper venue as an affirmative defense. He also filed a counterclaim for P80.000 against A
for attorneys fees and expenses for litigation. X moved for a preliminary hearing on said
affirmative defense. For his part, A filed a motion to dismiss the counterclaim for lack of
jurisdiction.
1.
Rule on the affirmative defense of improper venue. [3%]
2.
xxx
SUGGESTEDANSWER:
1.
There is improper venue. The case for a sum of money, which was filed in Quezon City, is a
personal action. It must be filed in the residence of either the plaintiff, which is in Pangasinan, or of
the defendant, which is in San Fernando, La Union. (Sec. 2 of Rule 4, 1997 Rules of Civil Procedure.)
The fact that it was not raised in a motion to dismiss does not matter because the rule that If
improper venue is not raised in a motion to dismiss it is deemed waived was removed from the
1997 Rules of Civil Procedure. The new Rules provide that if no motion to dismiss has been filed,
any of the grounds for dismissal may be pleaded as an affirmative defense in the answer. (Sec. 6 of
Rule 16.)
2.
xxx
Q: X, a resident of Angeles City, borrowed P300.000.00 from A, a resident of Pasay City. In the
loan agreement, the parties stipulated that the parties agree to sue and be sued in the City
of Manila.
(a)
In case of non-payment of the loan, can A file his complaint to collect the loan from X
in Angeles City?
(b)
Suppose the parties did not stipulate in the loan agreement as to the venue, where
can A file his complaint against X?
(c)
Suppose the parties stipulated in their loan agreement that Venue for all suits arising
from this contract shall be the courts in Quezon City," can A file his complaint against X in
Pasay City? (1997 Bar Question)
Answer:
(a)
Yes, because the stipulation in the loan agreement that the parties agree to sue and be
sued in the City of Manila does not make Manila the exclusive venue thereof." (Sec. 4 of Rule 4, as
58
amended by Circular No. 13-95: Sec. 4 of new Rule 4) Hence, A can file his complaint in Angeles City
where he resides. (Sec. 2 of Rule 4).
(b)
If the parties did not stipulate on the venue, A can file his complaint either in Angeles City
where he resides or in Pasay City where X resides. (Id).
(c)
Yes, because the wording of the stipulation does not make Quezon City the exclusive venue.
(Philbanking v. Tensuan, 230 SCRA 413; Unimasters Conglomeration. Inc. v. CA. GR-119657, Feb. 7.
1997).
Alternative Answer:
(a)
No. If the parties stipulated that the venue shall be in the courts in Quezon City", A cannot
file his complaint in Pasay City because the use of the word shall" makes Quezon City the exclusive
venue thereof. (Id. See also Hoechst Philippines vs. Torres, 83 SCRA 297).
4. Venue of actions against non-residents
5. When the rules on venue do not apply
(a)
A complaint entitled A as Attorney-In-Fact for X, plaintiff, versus B, Defendant was
filed to recover a car in the possession of B. As Power of Attorney expressly authorized him
(A) to sue for the recovery of the car. B files a Motion to Dismiss the Complaint for lack of
capacity to sue.
Decide the Motion. Explain.
(b)
A and B, both residents of Batangas, entered into a Contract of Lease over a parcel of
land belonging to B, located in Calapan, Mindoro. A filed a complaint before the Regional
Trial Court, sitting in Batangas City, for the rescission of the Lease Contract of the land in
Mindoro. B filed a Motion to Dismiss on the ground that the Batangas Court did not have
jurisdiction over the subject matter, the land being located in Mindoro. B however did not
alleged improper venue in his motion.
Decide with reasons.
Answer:
(a)
Motion to dismiss is denied. A has legal capacity to sue, but is not the real party in interest.
The ground of the motion to dismiss should have been that the complaint states no cause of action
because it was filed by A as Attorney-in- fact for X. The complaint should have been filed in the
name of X as plaintiff. (Arroyo vs. Granada, 18 Phil. 484)
(b)
Motion to dismiss is denied. The fact that the land is located in Mindoro does not affect the
jurisdiction of the Regional Trial Court sitting in Batangas City. The proper venue of the action is the
Regional Trial Court in Mindoro. However, since B did not object to the improper venue in his
motion, that ground is deemed waived. (Sec. 4 of Rule 4)
59
E. Pleadings
1. Kinds of pleadings
1)
What pleadings are allowed by the rules?
2)
What pleadings must be verified?
3)
xxx
Answer:
The pleadings allowed by the rules are the complaint, the answer, the counterclaim, the
crossclaim, the reply, the third-party (fourth-party etc.) complaint. (Sec. 2 of Rule 6)
1)
2)
3)
Those required by law to be verified, such as:

a)
Forcible Entry and Unlawful Detainer. (Sec. 1 of Rule 70)
b)
Denial of genuineness and due execution of a written instrument which is the basis
of an action or defense. (Sec. 8 of Rule 8)
c)
Denial of allegations of usury. (Sec. 1 of Rule 9)
d)
Petitions for certiorari, prohibition and mandamus. (Rule 65)
e)
Pleadings in Summary Procedure.
xxx
a. Complaint
b. Answer (Negative defenses, Negative pregnant, Affirmative defenses)
Q: For failure of KJ to file an answer within the reglementary period, the Court, upon motion
of LM, declared KJ in default. In due time, KJ filed an unverified motion to lift the order of
default without an affidavit of merit attached to it. KJ however attached to the motion his
answer under oath, stating in said answer his reasons for his failure to file an answer on
time, as well as his defenses. Will the motion to lift the order of default prosper? Explain.
(3%)
SUGGESTED ANSWER:
Yes, there is substantial compliance with the rule. Although the motion is unverified, the
answer attached to the motion is verified. The answer contains what the motion to lift the order of
default and the affidavit Of merit should contain, which are the reasons for movant's failure to
answer as well as his defenses. (Sec. 3 (bj of Rule 9, 1997 Rules of Civil Procedure; Cf. Citibank, N.A.
v. Court of Appeals, 304 SCRA 679, [19991; Consul v. Consul. 17 SCRA 667, 671 (19661; Tolentino v.
Carlos, 66 Phil. 140, 143-144 (19381, Nasser v. Court of Appeals, 191 SCRA 783 (19921).
c. Counterclaims (Compulsory counterclaim, Permissive counterclaim, Effect on the
counterclaim when the complaint is dismissed)
60
a.
What is a counterclaim? (2%)
b.
xxx
c.
xxx
SUGGESTED ANSWER:
a. A counterclaim is any claim which a defending party, may have against an opposing party.
Q: True or False. If the answer is false, explain your answer briefly.
(a)
xxx
(b)
xxx
(c)
xxx
(d)
A counterclaim is a pleading. (2%) (2007 Bar Question)
SUGGESTED ANSWER:
True. A counterclaim is a pleading by which a defending party makes a claim against an
opposing party (Sec. 6, Rule 6, Rules of Court).
Q: Is a motion to dismiss with counterclaim" sanctioned by the Rules of Court?
a)
If your answer is YES, state your reasons.
b)
If your answer is NO, give your reasons and state what the defendant should instead
file in court to preserve his counterclaim while maintaining the ground asserted in his
motion to dismiss as an issue that should be the subject of a preliminary hearing. (1992 Bar
Question)
Suggested Answer:
No, because a counterclaim is contained in an answer and not in a motion to dismiss.
What the defendant should do is to plead the ground of his motion to dismiss (except
improper venue) as an affirmative defense in his answer, together with his counterclaim, and ask
for a preliminary hearing on his affirmative defense as if a motion to dismiss had been filed. (Sec. 5
of Rule 16)
Compulsory counterclaim
Q: PX filed a suit for damages against DY. In his answer, DY incorporated a counterclaim for
damages against PX and AC, counsel for plaintiff in said suit, alleging in said counterclaim,
inter alia, that AC, as such counsel, maliciously induced PX to bring the suit against DY
despite ACs knowledge of its utter lack of factual and legal basis. In due time, AC filed a
motion to dismiss the counterclaim as against him on the ground that he is not a proper
party to the case, he being merely plaintiffs counsel.
Is the counterclaim of DY compulsory or not? Should ACs motion to dismiss the
counterclaim be granted or not? Reason. (5%) (2004 Bar Question)
SUGGESTED ANSWER:
61
Yes. The counterclaim of DY is compulsory because it is one which arises out of or is

connected with the transaction or occurrence constituting the subject matter of the opposing party
's claim and does not require for its adjudication the presence of third parties of whom the court
cannot acquire jurisdiction.(Sec. 7 of Rule 6).
The motion to dismiss of plaintiffs counsel should not be granted because bringing in
plaintiffs counsel as a defendant in the counterclaim is authorized by the Rules. Where it is
required for the grant of complete relief in the determination of the counterclaim, the court shall
order the defendant's counsel to be brought in since jurisdiction over him can be obtained. (Sec. 12
of Rule 6; Aurelio v. Court of Appeals 196 SCRA 674 [1994]); and other cases). Here, the
counterclaim was against both the plaintiff and his lawyer who allegedly maliciously induced the
plaintiff to file the suit.
ALTERNATIVE ANSWER:
The counterclaim should be dismissed because it is not a compulsory counterclaim. When a
lawyer files a case for a client, he should not be sued on a counterclaim in the very same case he has
filed as counsel. It should be filed in a separate and distinct civil action. (Chavez v.
Sandiganhayan, 193 SCRA 282 [1991]).
Q: A resident of Lingayen, Pangasinan sued X. a resident of San Fernando. La Union in the
Regional Trial Court (RTC) of Quezon City for the collection of a debt of PI million.
X did not file a motion to dismiss for improper venue but filed his answer raising therein
improper venue as an affirmative defense. He also filed a counterclaim for P80.000 against A
for attorneys fees and expenses for litigation. X moved for a preliminary hearing on said
affirmative defense. For his part, A filed a motion to dismiss the counterclaim for lack of
jurisdiction.
1. x x x
2. Rule on the motion to dismiss the counterclaim on the ground of lack of jurisdiction
over the subject matter. (12%)
SUGGESTEDANSWER:
1.
xxx
2.
The motion to dismiss on the ground of lack of jurisdiction over the subject matter should
be denied. The counterclaim for attorney's fees and expenses of litigation is a compulsory
counterclaim because it necessarily arose out of and is connected with the complaint. In an original
action before the Regional Trial Court, the counterclaim may be considered compulsory regardless
of the amount. (Sec. 7 of Rule 6, 1997 Rules of Civil Procedure.)
Permissive counterclaim
1)
A filed an action against B for recovery of possession of a piece of land. B in his
answer specifically denied As claim and interposed as counterclaim the amount of
P150,000.00, arising from another transaction, consisting of the price of the car he sold and
delivered to A and which the latter failed to pay.
62
Is Bs counterclaim allowed under the rules? Explain.

2)
A sued B for damages. B in his answer alleged as new matter the issue of prescription.
No reply thereto was filed by A.
Can the action be dismissed for failure of A to controvert the new matter set up by B?
Explain.
3)
X filed an action for damages against Y arising from the latters tortious act. Y filed his
answer with a counterclaim for damages suffered and expenses incurred on account of Xs
suit. Thereafter, X moved to dismiss the case since he lost interest in the case. Y did not
object. The court dismissed the action without prejudice. Y moved the court to set the
reception of his evidence to prove his counterclaim.
If you were the judge, how would you resolve the motion? Explain.
Answer:
1)
Bs counterclaim is a permissive counterclaim inasmuch as it arises out of another
transaction that is the subject-matter of As complaint. It is allowed if it is within the jurisdiction of
the court. (Sec. 8 of Rule 6)
Alternative Answer:
The question does not state to what court A filed the action. If the assessed value of the
property does not exceed P20.000.00, the action may be filed In a Municipal Trial Court, in which
case the counterclaim of P150,000.00 may not be allowed inasmuch as it is not within its
jurisdiction.
If the assessed value does not exceed P50.000.00, the action may be filed in a Metropolitan
Trial Court, in which case the counterclaim of P150,000.00 may be allowed inasmuch as it is within
its jurisdiction. (Sec. 33 of BP 129 as amended by RA No. 7691)
If the assessed value exceeds P50.000.00, the action may be filed in a Regional Trial Court. If
filed in Metro Manila, the counterclaim of P150.000.00 may not be allowed, but if filed outside
Metro Manila, it may be allowed. (Sec. 19 of BP 129 as amended by RA 7691)
2)
No, because if no reply is filed, all the new matters alleged in the answer are deemed
controverted. (Sec. 11 of Rule 6)
3)
I would deny the motion. Inasmuch as Y's counterclaim for damages incurred on account of
Xs suit cannot remain pending for independent adjudication. Y should have objected to the
dismissal of the complaint. His failure to object deprived him of the right to present evidence to
prove his counterclaim. (Sec. 2 of Rule 17; Ynotorio vs. Lira, 12 SCRA 369)
Q: Aya sues Lea for recovery of a tract of land. Lea seeks in turn to be reimbursed of the value
of improvements she had introduced on the same land and the payment of damages she had
sustained. Should Lea file a separate action against Aya for that purpose? (1994 Bar
Question)
Answer:
63
No. Leas claim cannot be made in a separate action. It is a compulsory counterclaim in the
suit filed by Aya against Lea for the recovery of the land. A compulsory counterclaim is one which
arises out of or is necessarily connected with the transaction or occurrence that is the subjectmatter of the opposing partys claim and does not require the presence of third parties of whom the
court cannot acquire jurisdiction. If Leas claim is not set up in the suit filed by Aya, the claim is
barred. (Sec. 4, Rule 9; Baclayon v. Court of Appeals 182 SCRA 761 [1990]).
Alternative Answer:
If Ayas action for recovery of land is one of forcible entry or unlawful detainer. Lea s claim
cannot be filed as a counterclaim but should be filed in a separate action.
d. Cross-claims
a.
xxx
b.
Distinguish a counterclaim from a crossclaim. (2%)
c.
xxx
SUGGESTED ANSWER:
a.
xxx
b.
A counterclaim is distinguished from a crossclaim in that a cross-claim is any claim by one
party against a co-party arising out of the transaction or occurrence that is the subject matter either
of the original action or of a counterclaim therein. A counterclaim is against an opposing party
while a cross-claim is against a co-party. (Sec. 8, Rule 6 of the 1997 Rules)
c.
xxx
Q: B and C borrowed P400.000.00 from A. The promissory note was executed by B and C in a
joint and several capacity. B, who received the money from A. gave C P200.000.00. C, in turn,
loaned P 100,000.00 out of the P200.000.00 he received to D.
(a)
In an action filed by A against B and C with the Regional Trial Court of Quezon City,
can B file a cross-claim against C for the amount of P200.000.00?
(b)
Can C file a third party complaint against D for the amount of P100.000.00? (1997
Bar Question)
Answer:
a)
Yes. B can file a cross-claim against C for the amount of 200,000.00 given to C. A cross-claim
is a claim filed by one party against a co-party arising out of the transaction or occurrence that is
the subject matter of the original action or a counterclaim therein and may include a claim that the
party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim
asserted against the cross-claimant. (Sec. 7 of former Rule 6; Sec. 8 of new Rule 6. Rules of Court).
b)
No, C cannot file a third-party complaint against D because the loan of 100,000.00 has no
connection with his opponents claim. C could have loaned the money out of other funds in his
possession.
64
Alternative Answer:
(b)
X Yes, C can file a third-party complaint against D because the loan of 100.000.00 was taken
out of the P200.000.00 received from B and hence the loan seeks contribution in respect to his
opponent's claim. (Sec. 12 of former Rule 6; Sec. 11 of new Rule 6)
A assembles an owner-type jeep for B who in turn rents it to X. Due to faulty brakes, X
figures in a vehicular accident causing him severe injuries. X files an action for damages
against A and B.
1)
May B file a third-party complaint against A for indemnity? Explain.

X sued Y for breach of contract with damages. After Y filed his answer, the parties
amicably settled. The court rendered Judgment based on said compromise. Within the
period to perfect the appeal, Y filed a motion for new trial under Rule 37 alleging vitiation of
his consent due to mistake and prayed that the agreement be set aside.
2)
Resolve the motion.

Plaintiff filed a complaint against defendant for recovery of possession of real
property with the Regional Trial Court of Manila. Defendant filed an answer with affirmative
defenses and interposed a counterclaim for damages and attorneys fees arising from the
filing of the complaint. When plaintiff failed to file an answer on the counterclaim, defendant
moved to declare him in default. Notwithstanding notice of the motion, plaintiff did not file
an opposition.
3)
As judge, how would you resolve the motion to declare plaintiff in default? Explain.
Answer:
1)
No, because what B should file is a crossclaim against his co-defendant A.
2)
A judgment by compromise is not appealable. Hence a motion for new trial is not proper. Y
should file a motion to set aside the agreement on the ground of mistake. (Reyes vs. Ugarte, 75 Phil.
505). or he could file a petition for relief under Rule 38 of the Rules of Court or file a new action to
annul the agreement within the prescriptive period (Saminiada vs. Mata, 92 Phil. 426).
3)
I would deny the motion. A compulsory counterclaim for damages and attorneys fees
arising from the filing of the complaint raises issues which are inseparable from those of the
complaint and does not require an answer. (Navarro vs. Bello. 102 Phil. 1019)
e. Third (fourth, etc.) party complaints
1.
A filed an action against B for recovery of possession of a piece of land. B in his
answer specifically denied As claim and interposed as counterclaim the amount of
P150,000.00, arising from another transaction, consisting of the price of the car he sold and
65
delivered to A and which the latter failed to pay.

Is Bs counterclaim allowed under the rules? Explain.
2.
A sued B for damages. B in his answer alleged as new matter the issue of
prescription. No reply thereto was filed by A.
Can the action be dismissed for failure of A to controvert the new matter set up by B?
Explain.
3.
X filed an action for damages against Y arising from the latters tortious act. Y filed his
answer with a counterclaim for damages suffered and expenses incurred on account of Xs
suit. Thereafter, X moved to dismiss the case since he lost interest in the case. Y did not
object. The court dismissed the action without prejudice. Y moved the court to set the
reception of his evidence to prove his counterclaim.
Answer:
1.
Bs counterclaim is a permissive counterclaim inasmuch as it arises out of another
transaction that is the subject-matter of As complaint. It is allowed if it is within the jurisdiction of
the court. (Sec. 8 of Rule 6)
Alternative Answer:
The question does not state to what court A filed the action. If the assessed value of the
property does not exceed P20.000.00, the action may be filed In a Municipal Trial Court, in which
case the counterclaim of P150,000.00 may not be allowed inasmuch as it is not within its
jurisdiction.
If the assessed value does not exceed P50.000.00, the action may be filed in a Metropolitan
Trial Court, in which case the counterclaim of P150,000.00 may be allowed inasmuch as it is within
its jurisdiction. (Sec. 33 of BP 129 as amended by RA No. 7691)
If the assessed value exceeds P50.000.00, the action may be filed in a Regional Trial Court. If
filed in Metro Manila, the counterclaim of P150.000.00 may not be allowed, but if filed outside
Metro Manila, it may be allowed. (Sec. 19 of BP 129 as amended by RA 7691)
2.
No, because if no reply is filed, all the new matters alleged in the answer are deemed
controverted. (Sec. 11 of Rule 6)
3.
I would deny the motion. Inasmuch as Y's counterclaim for damages incurred on account of
Xs suit cannot remain pending for independent adjudication. Y should have objected to the
dismissal of the complaint. His failure to object deprived him of the right to present evidence to
prove his counterclaim. (Sec. 2 of Rule 17; Ynotorio vs. Lira, 12 SCRA 369)
f. Complaint-in-intervention
g. Reply
66
Q: X files a complaint in the Regional Trial Court for the recovery of a sum of money with
damages against Y.Y files his answer denying liability under the contract of sale and praying
for the dismissal of the complaint on the ground of lack of cause of action because the
contract of sale was superseded by a contract of lease, executed and signed by X and Y two
weeks after the contract of sale was executed. The contract of lease was attached to the
answer. X does not file a reply. What is the effect of the non-filing of a reply? Explain. (3%)
(2000 Bar Question)
SUGGESTED ANSWER:
A reply is generally optional. If it is not filed, the new matters alleged in the answer are
deemed controverted. (Sec. 10 of Rule 6. 1997 Rules of Civil Procedure). However, since the
contract of lease attached to the answer is the basis of the defense, by not filing a reply denying
under oath the genuineness and due execution of said contract, the plaintiff is deemed to have
admitted the genuineness and due execution thereof. (Secs. 7 and 8, Rule 8,1997 Rules of Civil
Procedure; Toribio u. Bidin, 134 SCRA 162 (1985]).
2. Pleadings allowed in small claim cases and cases covered by the Rules on Summary
Procedure
Q: SPO1 CNC filed with the Metropolitan Trial Court in Quezon City (MeTC-QC) a sworn
written statement duly subscribed by him, charging RGR (an actual resident of Cebu City')
with the offense of slight physical injuries allegedly inflicted on SPS (an actual resident of
Quezon City). The Judge of the branch to which the case was raffled thereupon issued an
order declaring that the case shall be governed by the Rule on Summary Procedure in
criminal cases. Soon thereafter, the Judge ordered the dismissal of the case for the reason
that it was not commenced by information, as required by said Rule.
Sometime later, based on the same facts giving rise to the slight physical injuries case, the
City Prosecutor filed with the same MeTC-QC an information for attempted homicide against
the same RGR. In due time, before arraignment, RGR moved to quash the information on the
ground of double jeopardy and after due hearing, the Judge granted his motion.
Was the dismissal of the complaint for slight physical injuries proper? Was the grant of the
motion to quash the attempted homicide information correct? Reason (5%) (2004 Bar
Question)
SUGGESTEDANSWER:
Yes, the dismissal of the complaint for slight physical injuries is proper because in
Metropolitan Manila and in chartered cities, the case has to be commenced only by information.
(Sec. 11, Revised Rule on Summary Procedure).
No, the grant of the motion to quash the attempted homicide information on the ground of
double jeopardy was not correct, because there was no valid prosecution for slight physical injuries.
Q: Juan Santos appeals the decision against him to the Regional Trial Court (RTC) which
affirmed in toto the lower courts decision. Juan Santos then filed a motion for
reconsideration. Maria Cruz moves to strike out the motion for reconsideration as it is a
prohibited pleading under the Rules on Summary Procedure.
Is this tenable? Decide with reasons. (1990 Bar Question)
67
Answer:
No, because the rule on prohibited pleadings in summary procedure is applicable only to
the Metropolitan and Municipal Trial Courts (Glakihaca v. Aquino. Jan. 12.1990)
Q: Dalmacio filed a civil case against Cadio for the collection of P5,000 in the Municipal Trial
Court of Bacoor, After an examination of the complaint, the judge dismissed the case outright
due to improper venue. Dalmacio filed a motion for reconsideration of the order of
dismissal, contending that a provision in the promissory note attached to the complain and
made as the basis thereof clearly shows that the case must be filed with the Bacoor court.
Although realizing and admitting that he committed an error in dismissing the case, the
judge said that he could not revoke his previous order because no action can be taken on the
motion for reconsideration, which is a prohibited pleading under the Summary Rules. Is the
judge correct? Explain. (1989 Bar Question)
Answer:
No, because while a motion for reconsideration is not allowed under summary procedure
rules in order to avoid undue delay, a revocation of the erroneous order would avoid the delay
occasioned by an appeal by Dalmacio from the order of dismissal and a reversal of the said order by
the Regional Trial Court. (Cf. Heirs of Ricardo Olivas vs. Flory 161 SCRA 393)
Other acceptable Answers:
(1)
No, because the judge may correct his error under the inherent powers of the court to make
the order conform to law and justice.
(2)
Yes, because the Summary Procedure rules do not allow the filing of a motion for
reconsideration. The remedy of plaintiff is to appeal from the order.
3. Parts of a pleading
a. Caption
b. Signature and address
c. Verification and certification against forum shopping
Q: What is forum shopping? 2.5% (2007 Bar Question)
SUGGESTED ANSWER:
Forum-shopping is the act of filing multiple suits involving the same parties for the same cause of
action, either simultaneously or successively, for the purpose of obtaining a favorable judgment
(Executive Secretary v. Gordon, 298 SCRA 735 (19981).
68

[a]
xxx
[b]
xxx
[c]
The verification and certification of non-forum shopping are fatally defective because
there is no accompanying certification issued by the Philippine Consulate in New York,
authenticating that^Mr. Brown is duly authorized to notarize the document. (3%) Rule on
the foregoing grounds with reasons.(2009 Bar Question)
SUGGESTEDANSWER:
The third ground raised questioning the validity of the verification and certification of nonforum shopping for lack of certification from the Philippine Consulate in New York, authenticating
that Mr. Brown is duly authorized to notarize the document, is likewise without merit. The required
certification alluded to, pertains to official acts, or records of official bodies, tribunals, and public
officers, whether of the Philippines or of a foreign country: the requirement in Sec. 24, Rule 132 of
the 1997 Rules refers only to paragraph (a) of Sec. 29 which does not cover notarial documents. It is
enough that the notary public who notarized the verification and certification of non-forum
shopping is clothed with authority to administer oath in that State or foreign country.
Q: What is forum-shopping? What are the sanctions imposed for its violation? (1996 Bar
Question)
Answer:
Forum-shopping is the filing of multiple petitions, complaints or other initiatory pleadings
involving the same issues in the Supreme Court, the Court of Appeals or other tribunals or agencies,
with the result that said courts, tribunals or agencies have to resolve the same issues.
Any violation thereof shall be a cause for the dismissal of the complaint, petition,
application or other initiatory pleading, upon motion and after hearing. However, any clearly, wilful
and deliberate forum shopping by any party and his counsel through the filing of multiple
complaints or other initiatory pleadings to obtain favorable action shall be a ground for summary
dismissal thereof and shall constitute direct contempt of court. Furthermore, the submission of
false certification or non-compliance with the undertakings therein shall constitute indirect
contempt of court, without prejudice to disciplinary proceedings against the counsel and the filing
of a criminal action against the guilty party. (Circular Nos. 28-91 and 04-94)
Q: RC filed a complaint for annulment of the foreclosure sale against Bank V. In its answer,
Bank V set up a counterclaim for actual damages and litigation expenses. RC filed a motion to
dismiss the counterclaim on the ground that Bank Vs Answer with Counterclaim was not
accompanied by a certification against forum shopping. Rule. (5%) (2007 Bar Question)
SUGGESTED ANSWER:
A certification against forum shopping is required only in initiatory pleadings. In this case,
the counterclaim pleaded in the defendants Answer appears to have arisen from the plaintiff's
complaint or compulsory in nature and thus, may not be regarded as an initiatory pleading. The
absence thereof in the Banks Answer is not a fatal defect. Therefore, the motion to dismiss on the
ground raised, lacks merit and should be denied (UST v. Surla, 294 SCRA 382 [1998]).
On the other hand, if the counterclaim raised by the defendant Banks Answer was not
69
predicated on the plaintiffs claim or cause of action, it is considered a permissive counterclaim. In

which case, it would partake of an initiatory pleading which requires a certification against forum
shopping. Correspondingly, the motion to dismiss based on lack of the required certificate against
forum shopping should be granted.
Q: Honey filed with the Regional Trial Court, Taal, Batangas a complaint for specific
performance against Bemie. Forlack of a certification against forum shopping, the judge
dismissed the complaint. Honey's lawyer filed a motion for reconsideration, attaching
thereto an amended complaint with the certification against forum shopping. If you were the
judge, how will you resolve the motion? 5%
SUGGESTED ANSWER:
If I were the judge, I will deny the Motion for Reconsideration. The requirement of filing a
certificate of non-forum shopping is mandatory; it is not curable by mere amendment of the
complaint but the dismissal of the case shall be without prejudice. [Sec. 5, Rule 7 of the 1997
Revised Rules of Civil Procedure]. However, The rule may be liberally construed when there are
compelling reasons and a strict and literal application of the rules on non-forum shopping and
verification will result in a patent denial of substantial justice (Valte v. Court of Appeals, 433 SCRA
185 [2004]; Wack Wack Golf &. Country Club v. National Labor Relations Commission, 456 SCRA
280 [2005]).
Q: As counsel for A, B, C and D. Atty. XY prepared a complaint for recovery of possession of a
parcel of land against Z. Before filing the complaint, XY discovered that his clients were not
available to sign the certification of non-forum shopping. To avoid further delays in the filing
of the complaint, XY signed the certification and immediately filed the complaint in court. Is
XY Justified in signing the certification? Why? (5%) (2000 Bar Question)
SUGGESTED ANSWER:
No. counsel cannot sign the anti-forum shopping certification because it must be executed
by the plaintiff or principal party" himself (Sec. 5. Rule 7, 1997 Rules of Civil Procedure; Escorpizo
v. University of Baguio, 306 SCRA 497. (1999]). since the rule requires personal knowledge by the
party executing the certification, unless counsel gives a good reason why he is not able to secure his
clients signatures and shows that his clients will be deprived of substantial Justice {Ortiz v. Court of
Appeals, 299 SCRA 708,11998]) or unless he is authorized to sign It by his clients through a special
power of attorney.
d. Effect of the signature of counsel in a pleading
1.
xxx
2.
xxx
3.
What is the significance of a lawyers signature in the pleadings?
Answer:
1.
xxx
2.
xxx
70
The signature of a lawyer constitutes a certification by him that he has read the pleading;
that to the best of his knowledge, information and belief there is good ground to support it; and that
it is not interposed for delay. (Sec. 5 of Rule 7)
3.
4. Allegations in a pleading
a. Manner of making allegations
i. Condition precedent
ii. Fraud, mistake, malice, intent, knowledge and other condition of the mind,
judgments, official documents or acts
1.
The complaint alleged that the defendant acted in bad faith, arbitrarily, illegally,
wrongfully, and in violation of law. However, it did not contain any averment of facts
showing that defendant's acts were done in the manner alleged.
Does the complaint state a cause of action? Explain.
2.
X brought an action against Y for the annulment of the sale of certain shares of stock.
After the case was decided in favor of X, he filed another action for the recovery of the
dividends that had already accrued when the first action was filed.
Is the second action for the recovery of the dividends proper?
Answer:
1.
No, because it does not state the ultimate facts constituting the plaintiffs cause of action.
The allegations that the defendant acted in bad faith, arbitrarily, illegally, wrongfully and in
violation of the law are mere conclusions of fact or conclusions of law. (Remitere vs. Vda. De Yulo,
16 SCRA 251)
Alternative Answer:
Yes, if the complaint alleges ultimate facts and states that the acts were done in bad faith,
arbitrarily, illegally, wrongfully and in violation of the law. The rule allows malice, intent,
knowledge or other condition of the mind to be averred generally. (Sec. 5 of Rule 8)
2.
No, because the recovery of the dividends is part of the cause of action for the annulment of
the sale of certain shares of stock and should have been claimed in the first action. The second
action constituted splitting a single cause of action.
b. Pleading an actionable document
amounting to P167,899. He attached to the complaint the Bill of Lading.
A.
xxx
71
B.
The MeTC denied the Motion in question A. B Lines thus filed an Answer raising the
defense that under the Bill of Lading it issued to A, its liability was limited to Pl0, 000. At the
pre-trial conference, B Lines defined as one of the issues whether the stipulation limiting its
liability to Pl0, 000 binds A. A countered that this was no longer in issue 1l.S B Lines had
jailed to deny under oath the Bill of Lading. Which of the parties is correct? Explain. (3%)
(2010 Bar Question)
SUGGESTED ANSWER:
The Contention of B is correct: As contention is wrong. It was A who pleaded the Bill of
Lading as an actionable document where the stipulation limits B's liability to A to P10, 000.00 only.
The issue raised by B does not go against or impugn the genuineness and due execution of the Bill
of Lading as an actionable document pleaded by A, but invokes the binding effect of said stipulation.
The oath is not required of B, because the issue raised by the latter does not impugn the
genuineness and due execution of the Bill of Lading.
Q: Modesto sued Ernesto for a sum of money, claiming that the latter owed him PI-million,
evidenced by a promissory note, quoted and attached to the complaint. In his answer with
counterclaim, Ernesto alleged that Modesto coerced him into signing the promissory note,
but that it is Modesto who really owes him PI.5-million. Modesto filed an answer to Ernestos
counterclaim admitting that he owed Ernesto, but only in the amount of PO.5-million. At the
pretrial, Modesto marked and identified Ernestos promissory note. He also marked and
identified receipts covering payments he made to Ernesto, to the extent of PO.5-million,
which Ernesto did not dispute. After pre-trial, Modesto filed a motion for judgment on the
pleadings, while Ernesto filed a motion for summary judgment on his counterclaim. Resolve
the two motions with reasons. (5%) (2009 Bar Question)
SUGGESTED ANSWER:
Modestos motion for judgment on the pleadings should be denied. While it is true that
under the actionable document rule, Ernestos failure to deny under oath the promissory note in his
answer amounted to an implied admission of its genuineness and due execution, his allegation in
his answer that he was coerced into signing the promissory note tendered an issue which should be
tried. The issue of coercion is not inconsistent with the due execution and genuineness of the
instrument. Thus, Ernestos failure to deny the genuineness of the promissory note cannot be
considered a waiver to raise the issue that he was coerced in signing the same. Said claim of
coercion may also be proved as an exception to the Parol Evidence Rule.
On the other hand, Ernestos motion for summary judgment may be granted. Modestos
answer to Ernestos counterclaim that he owed the latter a sum less than what was claimed
amounted to an admission of a material fact and if the amount thereof could summarily be proved
by affidavits, deposition, etc., without the need of going to trial, then no genuine issue of fact exists.
ALTERNATIVE ANSWER:
Modestos motion for judgment on the pleadings should be denied because there is an issue
of fact. While Ernesto did not specifically deny under oath the promissory note attached to
Modestos complaint as an actionable document, such non-denial will not bar Ernestos evidence
that Modesto coerced him into signing the promissory note. Lack of consideration, as a defense,
does not relate to the genuineness and due execution of the promissory note.
Likewise, Ernestos motion for summary judgment should be denied because there is an
72
issue of fact the alleged coercion raise cf by Ernesto which he has yet to prove in a trial on its
merits. It is axiomatic that summary judgment is not proper or valid when there is an issue of fact
remaining which requires a hearing. And this is so with respect to the coercion alleged by Ernesto
as his defense, since coercion is not capable of being established by documentary evidence.
Q: In his answer to the complaint, Mario Reyes alleged that he does not owe Norma Alajar
any sum of money, and that he executed the promissory note only to enable Alajar to show
the same to her husband to explain the disappearance of the amount from the conjugal funds
as Norma Alajar lost the same in the casino. The answer is not verified. At the trial, the
lawyer of Norma Alajar objected to the testimony of Mario Reyes, as to his accommodation
story because, as the answer is not verified, he is deemed to have admitted the genuineness
and due execution of the promissory note.
Decide on the objection with reasons. (1990 Bar Question)
Answer:
Objection overruled. A verified answer is necessary in denying the genuineness and due
execution of the promissory note on which the action is based. However, the defense of Mario Reyes
does not dispute the genuineness or due execution of the promissory note. His defense of want of
consideration, that he executed the promissory note only to enable Alajar to explain the loss of
conjugal funds does not require a verified answer. (Sec. 8 of Rule 8)
c. Specific denials (Effect of failure to make specific denials, When a specific denial requires
an oath)
Q: In a complaint for recovery of real property, the plaintiff averred, among others, that he is
the owner of the said property by virtue of a deed of sale executed by the defendant in his
favor. Copy of the deed of sale was appended to the complaint as Annex A" thereof.
In his unverified answer, the defendant denied the ^legation concerning the sale of the
property In question, as Well as the appended deed of sale, for lack of knowledge or
information sufficient to form a belief as to the truth thereof.
Is it proper for the court to render judgment without trial? Explain. (4%)(2005 Bar
Question)
SUGGESTED ANSWER:
Defendant cannot deny the sale of the property for lack of knowledge or information
sufficient to form a belief as to the truth thereof. The answer, being defective, amounts to an
admission. (Phil. Advertising Counselors, Inc. v. Revilla, 52 SCRA 246 [19731; Sec. 10, Rule 8,1997
Rules of Civil Procedure). Moreover, the genuineness and due execution of the deed of sale can only
be denied by the defendant under oath and failure to do so is also an admission of the deed. (Sec. 8,
1997 Rules of Civil Procedure). Hence, a judgment on the pleadings can be rendered by the court
without need of a trial. (Gutierrez v. Court of Appeals, 74 SCRA 127 [1976]).
Q: In his complaint for foreclosure of mortgage to which was duly attached a copy of the
mortgage deed,, plain tiff PP alleged inter alia as follows: (1) that defendant DD duly executed
the mortgage deed, copy of which is Annex A" of the complaint and made an integral part
thereof; and (2) that to prosecute his complaint, plaintiff contracted a lawyer, CC, for a fee of
73
P50.000. In his answer, defendant alleged, inter alia, that he had no knowledge of the
mortgage deed, and he also denied any liability for plaintiffs contracting with a lawyer for a
fee.
Does defendants answer as to plaintiffs allegation no. 1 as well as no. 2 sufficiently raise an
issue of fact? Reason briefly. (5%) (2004 Bar Question)
SUGGESTED ANSWER:
As to plaintiffs allegation no. 1. defendant does not sufficiently raise an issue of fact, because
he cannot allege lack of knowledge of the mortgage deed since he should have personal knowledge
as to whether he signed it or not and because he did not deny under oath the genuineness and due
execution of the mortgage deed, which is an actionable document. As to plaintiffs allegation no. 2,
defendant did not properly deny liability as to plaintiffs contracting with a lawyer for a fee. He did
not even deny for lack of knowledge. (Sec. 10 of Rule 8).
Q: X sued Y, a shipping co., based on a contract of carriage contained in a bill of lading. The
bill of lading, an actionable document, was pleaded and attached to the complaint. Y, without
alleging anything else, merely assailed the validity of the agreement in the bill of lading for
being contrary to public policy. After presenting evidence, X did not formally offer for
admission the bill of lading. The court ruled for X. On motion for reconsideration. Y alleged
that X failed to prove his action as the bill of lading was not formally offered.
Answer:
Motion for reconsideration is denied. There was no need to formally offer for admission the
bill of lading, because the failure of Y to deny under oath the genuineness and due execution of the
bill of lading which was an actionable document constituted an admission thereof. (Sec. 8 of Rule 8)
Q: In an action for recovery of a sum of money, the plaintiff averred in the complaint that on
January 15, 1990, the defendant obtained a loan from the plaintiff in the sum of P100,000.00
which he promised to pay to the latter on or before July 15,1990 plus interest thereon at the
rate of 18% per annum from January 15,1990 until fully paid" and that the aforesaid loan
has long been overdue but despite repeated demands, the defendant failed and refused, and
still fails and refuses to pay to the plaintiff the aforesaid sum of P100,000.00 and the accrued
interest."
Answering the complaint, the defendant denied the aforequoted averments and gave the
reason for the denial his lack of knowledge or information sufficient to form a belief as to the
truth of said averments.
What is the effect of such denial? With such form of denial, what course of action may be
availed of by the plaintiff? Explain. (1993 Bar Question)
Answer:
The denial of the averments of the complaint claiming lack of knowledge or information
sufficient to form a belief as to the truth of said averments is not a sufficient specific denial. The
allegation in the complaint, that the defendant obtained a loan from the plaintiff and failed and
refused to pay the same, is so plainly and necessarily within the defendants knowledge that his
claim of ignorance must be palpably not true. [Warner Barnes vs. Reyes. 103 Phil. 602)
74
Since the answer tenders no issue or otherwise admits the material allegations of the
complaint, the plaintiff may properly file a motion for Judgment on the pleadings. (Rule 19:
Manufacturers Bank & Trust Co. vs. Diversified Industries. Inc.. 173 SCRA 357)
5. Effect of failure to plead
a. Failure to plead defenses and objections
a)
X files a complaint in the Regional Trial Court for the recovery of a sum of money with
damages against Y.Y files his answer denying liability under the contract of sale and praying
for the dismissal of the complaint on the ground of lack of cause of action because the
contract of sale was superseded by a contract of lease, executed and signed by X and Y two
weeks after the contract of sale was executed. The contract of lease was attached to the
answer. X does not file a reply. What is the effect of the non-filing of a reply? Explain. (3%)
SUGGESTED ANSWER:
a)
A reply is generally optional. If it is not filed, the new matters alleged in the answer are
deemed controverted. (Sec. 10 of Rule 6. 1997 Rules of Civil Procedure). However, since the
contract of lease attached to the answer is the basis of the defense, by not filing a reply denying
under oath the genuineness and due execution of said contract, the plaintiff is deemed to have
admitted the genuineness and due execution thereof. (Secs. 7 and 8, Rule 8,1997 Rules of Civil
Procedure; Toribio u. Bidin, 134 SCRA 162 (1985]).
b. Failure to plead a compulsory counterclaim and cross-claim
a)
xxx
b)
For failure of KJ to file an answer within the reglementary period, the Court, upon
motion of LM, declared KJ in default. In due time, KJ filed an unverified motion to lift the
order of default without an affidavit of merit attached to it. KJ however attached to the
motion his answer under oath, stating in said answer his reasons for his failure to file an
answer on time, as well as his defenses. Will the motion to lift the order of default prosper?
Explain. (3%)
SUGGESTED ANSWER:
a)
xxx
b)
Yes, there is substantial compliance with the rule. Although the motion is unverified, the
answer attached to the motion is verified. The answer contains what the motion to lift the order of
default and the affidavit Of merit should contain, which are the reasons for movant's failure to
answer as well as his defenses. (Sec. 3 (bj of Rule 9, 1997 Rules of Civil Procedure; Cf. Citibank, N.A.
v. Court of Appeals, 304 SCRA 679, [19991; Consul v. Consul. 17 SCRA 667, 671 (19661; Tolentino v.
Carlos, 66 Phil. 140, 143-144 (19381, Nasser v. Court of Appeals, 191 SCRA 783 (19921).
6. Default
a. When a declaration of default is proper
75

a.
When may a party be declared in default? (2%)
SUGGESTED ANSWER:
a.
A party may be declared in default when he fails to answer within the time allowed therefor,
and upon motion of the claiming party with notice to the defending party, and proof of such failure.
Q: May a party who is present at the pre-trial of a civil case and assisted by counsel still be
declared non-suited or as in default? Explain. (1989 Bar Question)
Answer:
No, because the only ground to declare a party non-suited or considered as in default at the
pre-trial is failure to appear thereat.
Other Acceptable Answers
(1) A party who refuses to obey an order of the court under the rules on depositions and
discovery may be declared non-suited or as in default. (Sec. 3(c) of Rule 29)
(2)
17)
A plaintiff who fails to prosecute may be declared non-suited or as in default. (Sec. 3 of Rule
(3) Under Circular 1-89 on mandatory continuous trial, failure to file a pre-trial brief is a
ground to be declared non-suited or as in default.
Q: Tina Guerrero filed with the Regional Trial Court of Bian, Laguna, a complaint for sum of
money amounting to PI Million
against Carlos Corro. The complaint alleges, among
others, t1 at Carlos borrowed from Tina the said amount evidenced by a promissory note
signed by Carlos and his wife, jointly and severally. Carlos was served with summons which
was received by Linda, his secretary. However, Carlos failed to file an answer to the
complaint within the 15-day reglamentary period. Hence, Tina filed with the court a motion
to declare Carlos in default and to allow her to present evidence ex parte. Five days
thereafter, Carlos filed his verified answer to the complaint, denying under oath the
genuineness and due execution of the promissory note; and contending that he has fully paid
his loan with interest at 12% per annum. (2006 Bar Question)
1.
xxx
2.
If you were the judge, will you grant Tinas motion to declare Carlos in default? 2.5%
SUGGESTED ANSWER:
No, I will not grant Tinas motion to declare Carlos in default. Considering that there was no
proper service of summons, the reglementary period to file a responsive pleading was not tolled.
Carlos was not duty bound to submit an Answer. Moreover, Carlos submitted a verified answer. It is
better to decide a case on the merits than on sheer technicality.
76
A.
The plaintiff sued the defendant in the RTC for damages allegedly caused by the
latters encroachment on the plaintiff's lot. In his answer, the defendant denied the plaintiffs
claim and alleged that it was the plaintiff who in fact had encroached on his (defendants)
land. Accordingly, the defendant counterclaimed against the plaintiff for damages resulting
from the alleged encroachment on his lot. The plaintiff filed an ex parte motion for extension
of time to answer the defendant's counterclaim, but the court denied the motion on the
ground that it should have been set for hearing. On the defendants motion, therefore, the
court declared the plaintiff in default on the counterclaim. Was the plaintiff validly declared
in default? Why? (5%)
B.
xxx
SUGGESTED ANSWER:
A.
No, the plaintiff was not validly declared in default. A motion for extension of time
to file an answer may be filed ex parte and need not be set for hearing. [Amante vs. Sunga,
64 SCRA 192 (1975)].
ALTERNATIVE ANSWER:
The general rule is that a counterclaim must be answered within ten (10) days from
service. (Rule 11, sec. 4). However, a counterclaim that raises issues which are deemed
automatically joined by the allegations of the Complaint need not be answered . [Gojo v.
Goyaia, 35 SCRA 557 (1970)].
A.
In this case, the defendants counterclaim is a compulsory counterclaim which arises out
or is connected with the transaction and occurrence constituting the subject matter of the
plaintiffs claim. It raises the same issue of who encroached on whose land. Hence, there
was no need to answer the counterclaim.
1
others, t at Carlos borrowed from Tina the said amount evidenced by a promissory note
1.
xxx
2.
If you were the judge, will you grant Tinas motion to declare Carlos in default? 2.5%
SUGGESTED ANSWER:
1.
xxx
2.
No, I will not grant Tinas motion to declare Carlos in default. Considering that there was no
proper service of summons, the reglementary period to file a responsive pleading was not tolled.
Carlos was not duty bound to submit an Answer. Moreover, Carlos submitted a verified answer. It is
better to decide a case on the merits than on sheer technicality.
77
b. Effect of an order of default, Effect of a partial default

a.
xxx
b.
What is the effect of an Order of Default? (2%)
c.
xxx
SUGGESTED ANSWER:
The effect of an Order of Default is that the court may proceed to render judgment granting
the claimant such relief as his pleading may warrant unless the court in its discretion requires the
claimant to submit evidence (Id.) The party in default cannot take part in the trial but shall be
entitled to notice of subsequent proceedings. (Sec. 3[A]. Rule 9 of the 1997 Rules)
c. Relief from an order of default, Extent of relief
a.
xxx
b.
xxx
c.
For failure to seasonably file his Answer despite due notice, A was declared in default
in a case instituted against him by B. The following day, As mistress who is working as a
clerk in the sala of the Judge before whom his case is pending, informed him of the
declaration of default. On the same day, A presented a motion under oath to set aside the
order of default on the ground that his failure to answer was due to fraud and he has a
meritorious defense. Thereafter, he went abroad. After his return a week later, with the case
still undecided, he received the order declaring him in default. The motion to set aside
default was opposed by B on the ground that it was filed before A received notice of his
having been declared in default, citing the rule that the motion to set aside may be made at
anytime after notice but before judgment. Resolve the Motion. (2%)
SUGGESTED ANSWER:
a.
xxx
b.
xxx
c.
Assuming that the motion to set aside complies with the other requirements of the rule, it
should be granted although such a motion may be made after notice but before judgment (Sec. 3[B]
of Rule 9), with more reason may it be filed after discovery even before receipt of the order of
default.
Q: What are the available remedies of a party declared in default:
1.
Before the rendition of Judgment; (1%]
2.
After judgment but before its finality; and |2%)
3.
After finality of judgment? [2%] (1998 Bar Question)
SUGGESTED ANSWER:
78
The available remedies of a party declared in default are as follows:

1.
Before the rendition of judgment (a) he may file a motion under oath to set aside the order
of default on the grounds of fraud, accident, mistake or excusable negligence and that he has a
meritorious defense (Sec. 3[b), Rule 9, 1997 Rules of Civil Procedure); and if it is denied, he may
move to reconsider, and if reconsideration is denied, he may file the special civil action of certiorari
for grave abuse of discretion tantamount to lack or excess of the lower court's jurisdiction. (Sec. 1,
Rule 65, Rules of Court) or (b) he may file a petition for certiorari If he has been illegally declared in
default, e.g. during the pendency of his motion to dismiss or before the expiration of the time to
answer. (Matute us. Court of Appeals, 26 SCRA768; Acosta-Ofalia vs. Sundiam, 85 SCRA 412.)
2.
After judgment but before its finality, he may file a motion for new trial on the grounds of
fraud, accident, mistake, excusable negligence, or a motion for reconsideration on the ground of
excessive damages, insufficient evidence or the decision or final order being contrary to law (See. 2,
Rule 37, 1997 Rules of Civil Procedure); and thereafter. If the motion is denied, appeal la available
under Rules 40 or 41, whichever is applicable.
3.
After finality of the Judgment, there are three ways to assail the Judgment, which are: (a) a
petition for relief under Rule 38 on the grounds of fraud, accident, mistake or excusable negligence;
(b) annulment of Judgment under Rule 47 for extrinsic fraud or lack of Jurisdiction; or (c) certiorari
if the Judgment Is void on Its face or by the judicial record. (Balangcad us. Justices qf the Court of
Appeals, G.R. No. 83888, February 12, 1992, 206 SCRA 171 and other cases).
Q: Jojie filed with the Regional Trial Court of Laguna a complaint for damages against Joe.
During the pre-trial, Jojie and her counsel (sic) failed to appear despite notice to both of
them. Upon oral motion of Jojie, Joe was declared as in default and Jojie was allowed to
present her evidence ex parte. Thereafter, the court rendered its Decision in favor of Jojie.
Joe hired Jose as his counsel. What are the remedies available to him? Explain. 5% (2006 Bar
Question)
SUGGESTED ANSWER:
Under the present rule, there can be no judgment by default by mere failure of the
defendant to appear in the pre-trial. The only consequence of such failure to appear is that the
plaintiff can present his evidence ex parte and the court may render judgment on the basis thereof
(Sec. 5, Rule 18 of the 1997 Revised Rules of Civil Procedure). The following are the remedies
available to Joe:
(a)
motion for reconsideration;
(b)
motion for new trial;
(c)
appeal;
(d)
petition for relief from a judgment of default;
(e)
annulment of judgment under Rule 47; and
(f)
certiorari under Rule. 65.
79
Q: Mario was declared in default but before judgment was rendered, he decided to file a
motion to set aside the order of default.
a)
What should Mario state in his motion in order to Justify the setting aside of the order
of default? (3%)
b)
In what form should such motion be? (2%) (2001 Bar Question)
SUGGESTED ANSWER:
a)
In order to justify the setting aside of the order of default, Mario should state in his motion
that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he
has a meritorious defense. [Sec. 3(b) of Rule9,1997 Rules of Civil Procedure).
b)
The motion should be under oath. (Id.)
d. Actions where default is not allowed

Q: Defendant was declared in default by the Regional Trial Court (KTC). Plaintiff was allowed
to present evidence in support of his complaint. Photocopies of official receipts and original
copies of affidavits were presented in court, identified by plain tiff on the witness stand and
marked as exhibits. Said documents were offered by plaintiff and admitted in evidence by
the court on the basis of which the RTC rendered judgment in favor of the plaintiff, pursuant
to the relief prayed for. Upon receipt of the judgment, defendant appeals to the Court of
Appeals claiming that the judgment is not valid because the RTC based its judgment on mere
photocopies and affidavits of persons not presented in court.
(a)
Is the claim of defendant valid? Explain. (3%)
(b)
Will your answer be the same if the photocopies of official receipts and photocopies
of affidavits were attached to the position paper submitted by plaintiff in an action for
unlawful detainer filed with the Municipal Trial Court on which basis the court rendered
Judgment in favor of plaintiff? Explain. (2%) (2000 Bar Question)
SUGGESTED ANSWER:
(a)
The claim of defendant is not valid because under the 1997 Rules, reception of evidence
is not required. After a defendant is declared in default, the court shall proceed to render Judgment
granting the claimant such relief as his pleading may warrant, unless the court in its discretion
requires the claimant to submit evidence, which may be delegated to the clerk of court. (Sec. 3, Rule
9, 1997 Rules of Civil Procedure)
ALTERNATIVE ANSWER:
The claim of defendant is valid, because the court received evidence which it can order in its own
discretion, in which case the evidence of the plaintiff must pass the basic requirements of
admissibility.
SUGGESTED ANSWER:
(b)
The claim of defendant is valid, because although summary procedure requires merely
the submission of position papers, the evidence submitted with the position paper must be
admissible in evidence. (Sec. 9 of the Revised Rule on Summary Procedure). Photocopies of official
80
receipts and affidavits are not admissible without proof of loss of the originals. (Sec. 3 of Rule 130)
Q: At a pre-trial hearing in the Regional Trial Court of which the plaintiff and the defendant,
as well as their respective attorneys of record were duly notified, only plaintiffs attorney
appeared but without the requisite power of attorney authorizing him to fully and effectively
represent plaintiff at the pre-trial hearing. Because of the absence of the defendant and his
counsel, plaintiffs attorney moved in open court to have the defendant declared as in
default.
Under the circumstances, what should the court do? Discuss fully. (1992 Bar Question)
Suggested Answer:
The court should deny the motion to have the defendant declared as in default and dismiss
the action on the ground that only the plaintiffs attorney appeared but without the requisite power
of attorney to fully and effectively represent plaintiff at the pre-trial hearing. [Home Insurance
Company vs. U.S. Lines Co., 21 SCRA 865)
Considering the fact that plaintiffs attorney appeared, the court should make the dismissal
without prejudice, or reset the pre-trial hearing with notice to the parties.
Answer:
(2)
17)
7. Filing and service of pleadings
a. Modes of service (Personal service, Service by mail, Substituted service)
Q: A filed before the Regional Trial Court in Makati, Metro Manila, an action for damages
against B for a tort alledgedly committed by B while B was on a vacation in the
Philippines when he temporarily lived at the residence of his brother in Makati. The
summons was served on BY brother. Bs lawyer filed a motion to dismiss on behalf of B
and asserted that B was not a resident of and could not be found in 'the Philippines so that
81
the court cannot acquire jurisdiction over his person. The motion also alleged that anyway
the action has prescribed the further asserted a claim for litigation expenses. Assume that
Bs" lawyer had been authorized by B to represent him.
If you were the judge, will you dismiss the case on the ground of the courts lack of
jurisdiction over the person of B? Explain. (1987 Bar Question)
Answer:
No. Although substituted service of summons on Bs brother was not valid inasmuch as
B was not a resident of the Philippines, the motion to dismiss filed by Bs lawyer , constituted a
voluntary appearance, inasmuch as it not only questioned the jurisdiction of the court over his
person, but also alleged prescription and a claim for litigation expenses. (Note: The claim for
litigation expenses may properly be made In a counterclaim.)
8. Amendment
a. Amendment as a matter of right
Q: Arturo lent PI Million to this friend Robert on the condition that Robert execute a
promissory note for the loan and a real estate mortgage over his property located in
Tagaytay City. Robert complied. In his promissory note dated September 20, 2006, Robert
undertook to pay the loan within a year from its date at 12% per annum interest. In June
2007, Arturo requested Robert to pay ahead of time but the latter refused and insisted on
the agreement. Arturo issued a demand letter and when Robert did not comply, Arturo filed
an action to foreclose the mortgage. Robert moved to dismiss the complaint for lack of cause
of action as the debt was not yet due. The resolution of the motion to dismiss was delayed
because of,the retirement of the judge.
a)
On October 1, 2007, pending resolution of the motion to dismiss, Arturo filed an
amended complaint alleging that Roberts debt had in the meantime become due but that
Robert still refused to pay. Should the amended complaint be allowed considering that no
answer has been filed? (3%) (2008 Bar Question)
SUGGESTED ANSWER:
a)
No. Even though an amendment of the complaint before answer is a matter of right, lack of a
cause of action at the commencement of a suit is not cured by the accrual of a cause of action
subsequent thereto, such that an amendment setting up the after-accrued cause of action is not
allowed (Swagman Hotels And Travel, Inc. v. Court of Appeals, 455 SCRA 175 [2005]).
b. Amendments by leave of court
Q: After an answer has been filed, can the plaintiff amend his complaint, with leave of court,
by changing entirely the nature of the action? (2003 Bar Question)
SUGGESTED ANSWER:
Yes. the present rules allow amendments substantially altering the nature of the
cause of action. (Sec. 3, Rule 10, 1977 Rules of Civil Procedure; Heirs of Marcelino Pagobo v.
Court of Appeals, 280 SCRA 870 [1997]). This should only be true, however, when the
substantial change or alteration in the cause of action or defense shall serve the higher
interests of substantial justice and prevent delay and eq ually promote the laudable
objective of the rules which is to secure a just, speedy and inexpensive disposition of
82
every action and proceeding. (Valenzuela v. Court of Appeals, 363 SCRA 779 [2001]).
c. Formal amendment
d. Amendments to conform to or authorize presentation of evidence
Q: In a complaint for a sum of money filed before the MM Regional Trial Court, plaintiff did
not mention or even just hint at any demand for payment made on defendant before
commencing suit. During the trial, plaintiff duly offered Exh. A" in evidence for the stated
purpose of proving the making of extrajudicial demand on defendant to pay P500.000, the
subject of the suit. Exh. A" was a letter of demand for defendant to pay said sum of money
within 10 days from receipt, addressed to and served on defendant some two months before
suit was begun. Without objection from defendant, the court admitted Exh. A" in evidence.
Was the courts admission of Exh. A in evidence erroneous or not? Reason. (5%) (2004 Bar
Question)
SUGGESTED ANSWER:
The courts admission of Exh. A in evidence is not erroneous. It was admitted in evidence
without objection on the part of the defendant. It should be treated as if it had been raised in the
pleadings. The complaint may be amended to conform to the evidence, but if it is not so amended, it
does not affect the result of the trial on this issue. (Sec. 5 of Rule 10).
Q: During trial, plaintiff was able to present, without objection on the part of defendant in an
ejectment case, evidence showing that plaintiff served on defendant a written demand to
vacate the 'subject property before the commencement of the suit, a matter not alleged or
otherwise set forth in the pleadings on file.
May the corresponding pleading still be amended to conform to the evidence? Explain.
SUGGESTED ANSWER:
Yes. The corresponding pleading may still be amended to conform to the evidence, because
the written demand to vacate, made prior to the commencement of the ejectment suit, was
presented by the plaintiff in evidence without objection on the part of the defendant. Even if the
demand to vacate was jurisdictional, still, the amendment proposed was to conform to the evidence
that was already in the record and not to confer jurisdiction on the court, which is not allowed.
Failure to amend, however, does not affect the result of the trial on these issues. (Sec. 5 of Rule 10).
ALTERNATIVEANSWER:
It depends. In forcible entry, the motion may be allowed at the discretion of the court, the
demand having been presented at the trial without objection on the part of the defendant. In
unlawful detainer, however, the demand to vacate is jurisdictional and since the court did not
acquire jurisdiction from the very beginning, the motion to conform to the evidence cannot be
entertained. The amendment cannot be allowed because it will in effect confer jurisdiction when
there is otherwise no jurisdiction.
Q: An information was filed, in the proper court against Arturo charging him with theft of
83
300 blocks of industrial aluminum worth P999.000.00 allegedly committed on or about the
period from January 1986 to December 23,1991. Arturo filed a motion to quash the
information on the ground that it was grossly insufficient and fatally defective since there is
such a great gap in the inclusive period of the alleged commission of the offense. He is, in
effect, being deprived of a reasonable opportunity to defend himself.
In resolving the motion to quash, what basic and ancillary rulings should the court make so
that it can extend to the accused optimum and adequate relief. Discuss fully. (1992 Bar
Question)
Suggested Answer:
The court may grant the motion to quash on the ground that the allegation of the time of
commission of the offense is defective because the period from January 1986 to December 23. 1991,
or almost six years, is too indefinite to give the accused an opportunity to prepare-his defense; or
the court may order the amendment of the information or the submission of a bill of particulars so
as to allege the actual date or at least as near to it as possible in order not to surprise and
substantially prejudice the accused.
Q: A complaint was filed by the counsel for Superior Sales (an entity without a distinct
juridical personality) against Mr. Garcia on a money claim for goods delivered. Mr. Garcia
did not file a motion to dismiss. Eventually, trial was held and his liability was established
through several invoices, each of which uniformly- showed on its face that Mr. Tan is the
proprietor of Superior Sales. After Superior Sales had rested its case. Mr. Garcia filed a
motion to dismiss on the ground that, since there is actually no person properly suing as
plaintiff, no relief can be granted by the court. On the other hand, the counsel for Superior
Sales filed a motion to amend the complaint to make it conform to the evidence, that the real
party plaintiff is Mr. Tan. The court denied said motion on the ground that it was filed too
late and instead, dismissed the case.
Didthecourt act correctly? Explain. (1992 Bar Question)
Suggested Answer:
No, the court erred in denying the motion to amend the complaint and dismissing the case.
The mistake in the name of the plaintiff (which should have been Mr. Tan instead of
Superior Sales which had no juridical personality) was cured by the presentation of evidence
(without objection) that Mr. Tan is the proprietor of Superior Sales. Hence the amendment of the
complaint to conform to the evidence was proper, and even if no amendment was made, it would
not affect the result of the trial on the issue of the real party in interest. (Sec. 5 of Rule 10)
e. Effect of amended pleading
Q: Upon termination of the pre-trial, the judge dictated the pretrial order in the presence of
the parties and their counsel, reciting what had transpired and defining three (3) issues to
be tried.
[a]
If, immediately upon receipt of his copy of the pretrial order, plaintiffs counsel should
move for its amendment to include a fourth (4th) triable issue which he allegedly
inadvertently failed to mention when the judge dictated the order. Should the motion to
amend be granted? Reasons. (2%) (2009 Bar Question)
84
SUGGESTED ANSWER:
Depending on the merit of the issue sought to be brought in by the amendment, the motion
to amend may be granted upon due hearing. It is a policy of the Rules that parties should be
afforded reasonable opportunity to bring about a complete determination of the controversy
between them, consistent with substantial justice. With this end in view, the amendment before
trial may be granted to prevent manifest injustice. The matter is addressed to the sound and
judicious discretion of the trial court.
[b]
Suppose trial had already commenced and after the plaintiffs second witness had
testified, the defendants counsel moves for the amendment of the pre-trial order to include
a fifth (5th) triable issue vital to his clients defense. Should the motion be granted over the
objection of plaintiffs counsel? Reasons. (3%) (2009 Bar Question)
SUGGESTED ANSWER:
The motion may be denied since trial had already commenced and two witnesses for the
plaintiff had already testified. Courts are required to issue pre-trial Order after the pre-trial
conference has been terminated and before trial begins, precisely because the reason for such
Order is to define the course of the action during the trial. Where trial had already commenced,
more so the adverse party had already presented witnesses
Q: Arturo lent PI Million to this friend Robert on the condition that Robert execute a
promissory note for the loan and a real estate mortgage over his property located in
Tagaytay City. Robert complied. In his promissory note dated September 20, 2006, Robert
undertook to pay the loan within a year from its date at 12% per annum interest. In June
2007, Arturo requested Robert to pay ahead of time but the latter refused and insisted on
the agreement. Arturo issued a demand letter and when Robert did not comply, Arturo filed
an action to foreclose the mortgage. Robert moved to dismiss the complaint for lack of cause
of action as the debt was not yet due. The resolution of the motion to dismiss was delayed
because of,the retirement of the judge.
a)
On October 1, 2007, pending resolution of the motion to dismiss, Arturo filed an
amended complaint alleging that Roberts debt had in the meantime become due but that
Robert still refused to pay. Should the amended complaint be allowed considering that no
answer has been filed? (3%) (2008 Bar Question)
SUGGESTED ANSWER:
b)
No. Even though an amendment of the complaint before answer is a matter of right, lack of a
cause of action at the commencement of a suit is not cured by the accrual of a cause of action
subsequent thereto, such that an amendment setting up the after-accrued cause of action is not
allowed (Swagman Hotels And Travel, Inc. v. Court of Appeals, 455 SCRA 175 [2005]).
c)
Would your answer be different had Arturo filed instead a supplemental complaint
stating that the debt became due after the filing of the original complaint (2%) (2008 Bar
Question)
SUGGESTED ANSWER:
b)
No, because a complaint whose cause of action has not accrued yet when filed, does not gain
85
any standing in court such that no amendment, whether by amended or supplemental pleading, can
cure the deficiency. The subsequent cause of action that arose may only be subject of a different suit
but cannot be pleaded as a supplement to the complaint where no cause of action exists. Simply put,
no amended or supplemental complaint is allowed (Swagman Hotels And Travel, Inc. v. Court of
Appeals, 455 SCRA 175 [2005]).
Q: On May 12. 2005, the plaintiff filed a complaint in the Regional Triad Court of Quezon City
for the collection of P250,000.00. The defendant filed a motion to dismiss the complaint on
the ground that the court had no jurisdiction over the action since the claimed amount of
P250.000.00 is within the exclusive jurisdiction of the Metropolitan Trial Court of Quezon
City.
Before the court could resolve the motion, the plaintiff, without leave of court, amended his
complaint to allege a new cause of action consisting in the inclusion of an additional amount
of P200,000.00, thereby increasing his total claim to P450,000.00. The plaintiff thereafter
filed his opposition to the motion to dismiss, claiming that the Regional Trial Court had
jurisdiction over his action.
Rule on the motion of the defendant with reasons. (4%) (2005 Bar Question)
SUGGESTED ANSWER:
The motion to dismiss should be denied. A plaintiff is entitled as a matter of right to amend
the complaint before a responsive pleading is served, without leave of court, even if there is a
pending motion to dismiss (Sec. 2, Rule 10, 1997, Rules of Civil Procedure; Soledad v. Manangun, 8
SCRA 110 11963]; Remington Industrial Sales Corporation v. Court of Appeals, 382 SCRA 499
[2002]), While a complaint cannot be amended to confer jurisdiction on a court where there was
none (Calabig v. Villanueva, 135 SCRA300 [1985]), the rule applies where a responsive pleading has
already been filed because in such a case, amendment should be by leave of court under Section 3
Rule 10. If the court is without jurisdiction, it has no jurisdiction to grant leave of court. A motion to
dismiss is not a responsive pleading, therefore, amendment is a matter of right (Rule 10, Sec. 1,
Rules of Civil Procedure Dauden-Herfiaez v. de los Angeles, 27 SCRA 1276 [1969]; Gumabay v.
Baralin 77 SCRA 258 [1977]).
Q: X, an illegitimate child of Y, celebrated her 18th birthday on May 2, 1996. A month before
her birthday. Y died. The legitimate family of Y refused to recognize X as an illegitimate child
of Y. After countless efforts to convince them, X filed on April 25, 2000 an action for
recognition against Z, wife, of Y. After Z filed her answer on August 14, 2000, X filed a motion
for leave to file an amended complaint and a motion to admit the said amended complaint
impleading the three (3) legitimate children of Y. The trial court admitted the amended
complaint on August 22, 2000. What is the effect of the admission of the amended complaint?
Has the action of X prescribed? Explain. (5%) (2000 Bar Question)
SUGGESTED ANSWER:
No. The action filed on April 25, 2000 is still within the four-year prescriptive period which
started to run on May 2, 1996. The amended complaint impleading the three legitimate children,
though admitted on August 22, 2000 beyond the four-year prescriptive period, retroacts to the date
of filing of the original complaint. Amendments impleading new defendants retroact to the date of
the filing of the complaint because they do not constitute a new cause of action. (Verzosa u. Court of
Appeals, 299 SCRA 100 (1938]).
86
(Note: The four-year period is based on Article 285 of the Civil Code)
ALTERNATIVE ANSWER:
Under the 1997 Rules of Civil Procedure, if an additional defendant is impleaded in a later
pleading, the action is commenced with regard to him on the date of the filing of such later pleading,
irrespective of whether the motion for its admission, if necessary, is denied by the court. (Sec. 5 of
Rule 1).
Consequently, the action of X has prescribed with respect to the three (3) legitimate
children of Y who are indispensable parties.
ANOTHER ALTERNATIVE ANSWER:
Under Article 175 of the Family Code, the action must be brought within the lifetime of X if
the action is based on a record of birth or an admission of filiation In a public document or a private
handwritten instrument signed by Y. In such case, the action of X has not prescribed.
However, if the action is based on the open and continuous possession of the status of an
illegitimate child, the action should have been brought during the lifetime of Y. In such case, the
action of X has prescribed.
Q: Michelle sued Juliet for reinvindication for the recovery of land. After the hearing but
previous to the rendition-of judgment, Michelle amended her complaint making the principal action one for rescission of contract. Juliet objected.
If you were the judge, would you allow the amendment? (1994 Bar Question)
Answer:
No. I would not allow the amendment because the amendment of the complaint from
recovery of land to one for rescission of contract is a substantial change in the cause of action which
may not be done alter the trial and previous to the rendition of judgment. (Torres vs. Tomacruz, 49
Phil. 913).
Alternative Answer:
Yes. The amendment of the complaint to one of rescission of contract is not a substantial
change in the cause of action, because Michelles objective is actually for the recovery of land. The
rule on amendment should not be Inflexible but liberal.
F. Summons
1. Nature and purpose of summons in relation to actions in personam, in rem and quasi in
rem
Q: Summons was issued by the MM Regional Trial Court and actually received on time by
defendant from his wife at their residence. The sheriff earlier that day had delivered the
summons to her at said residence because defendant was not home at the time. The sheriffs
return or proof of service filed with the court in sum states that the summons, with attached
87
copy of the complaint, was served on defendant at his residence thru his wife, a person of
suitable age and discretion then residing therein. Defendant moved to dismiss on the ground
that the court had no jurisdiction over his person as there was no valid service of summons
on him because the sheriffs return or proof of service does not show that the sheriff first
made a genuine attempt to serve the summons on defendant personally before serving it
thru his wife.
Is the motion to dismiss meritorious? What is the purpose of summons and by whom may it
be served? Explain. (5%) (2004 Bar Question)
SUGGESTED ANSWER:
The motion to dismiss is not meritorious because the defendant actually received the
summons on time from his wife. Service on the wife was sufficient. (Boticano v. Chu, 148 SCRA
541 [1987D. It is the duty of the court to look into the sufficiency of the service. The sheriffs
negligence in not stating in his return that he first made a genuine effort to serve the summons on
the defendant, should not prejudice the plaintiff. (Mapa v. Court of Appeals, 214 SCRA 417
[1992]).
The purpose of the summons is to inform the defendant of the complaint filed against him
and to enable the court to acquire jurisdiction over his person. It may served by the sheriff or his
deputy or any person authorized by the court.
ALTERNATIVE ANSWER:
Yes. The motion to dismiss is meritorious. Substituted service cannot be effected unless the
sheriffs return shows that he made a genuine attempt to effect personal service on the husband.
2. Voluntary appearance
Q: While the trial was ongoing, the lawyer of Mario Reyes discovered that there was
improper service of summons, the summons having been sent by registered mail. He filed a
motion to dismiss on the ground that the court had not acquired jurisdiction over the person
of Mario Reyes.
Should the said motion be granted? Explain your answer. (1990 Bar Question)
Answer:
No, because by filing his answer and going to trial without previous objection to the lack of
jurisdiction over his person, Mario Reyes is deemed to have waived the defect of improper service
of summons. (Rule 14)
a.
What is the effect of absence of summons on the judgment rendered in the case? (2%)
When additional defendant is impleaded in the action, is it necessary that summons

be served upon him? Explain; (2%)
b.
Is summons required to be served upon a defendant who was substituted for the
deceased? Explain. (2%)
c.
d.
A sued XX Corporation (XXC), a corporation organized under Philippine laws, for

88
specific performance when the latter failed to deliver T-shirts to the former as stipulated in
their contract of sale. Summons was served on the corporations cashier and director. Would
you consider service of summons on either officer sufficient? Explain. (2%)
SUGGESTED ANSWER:
a.
The effect of the absence of summons on a judgment would make the judgment null and
void because the court would not have jurisdiction over the person of the defendant, but if the
defendant voluntarily appeared before the court, his appearance is equivalent to the service of
summons. (Sec. 20, Rule 14, 1997 Rules)
b.
Yes. Summons must be served on an additional defendant impleaded in the action so that
the court can acquire jurisdiction over him, unless he makes a voluntary appearance.
c.
No. A defendant who was substituted for the deceased need not be served with summons
because it is the court which orders him as the legal representative of the deceased to appear and
substitute the deceased. (Sec. 16 of Rule 3.)
d.
Summons on a domestic corporation through its cashier and director are not valid under
the present rules. (Sec. 11, Rule 14, Rules of Court.) They have been removed from those who can
be served with summons for a domestic corporation. Cashier was substituted by treasurer. (Id.)
3. Personal service
others, t1 at Carlos borrowed from Tina the said amount evidenced by a promissory note
1.
Was the summons validly served on Carlos? 2.5%
SUGGESTED ANSWER:
No, the summons was not validly served on Carlos. As a general rule, summons must be
served on the defendant in person (Sec. 6, Rule 14 of the 1997 Revised lules of Civil Procedure).
Substituted service may be resorted to only when the defendant cannot be served personally within
a reasonable time and for a justifiable eason (Sec. 7, Rule 14 of the 1997 Revised Rules of Civil
Procedure). The return must show impossibility of service and efforts of the Sheriff to effect
personal service.
4. Substituted service
Q: Summons was issued by the MM Regional Trial Court and actually received on time by
89
defendant from his wife at their residence. The sheriff earlier that day had delivered the
summons to her at said residence because defendant was not home at the time. The sheriffs
return or proof of service filed with the court in sum states that the summons, with attached
copy of the complaint, was served on defendant at his residence thru his wife, a person of
suitable age and discretion then residing therein. Defendant moved to dismiss on the ground
that the court had no jurisdiction over his person as there was no valid service of summons
on him because the sheriffs return or proof of service does not show that the sheriff first
made a genuine attempt to serve the summons on defendant personally before serving it
thru his wife.
Is the motion to dismiss meritorious? What is the purpose of summons and by whom may it
be served? Explain. (5%) (2004 Bar Question)
SUGGESTED ANSWER:
The motion to dismiss is not meritorious because the defendant actually received the
summons on time from his wife. Service on the wife was sufficient. (Boticano v. Chu, 148 SCRA
541 [1987D. It is the duty of the court to look into the sufficiency of the service. The sheriffs
negligence in not stating in his return that he first made a genuine effort to serve the summons on
the defendant, should not prejudice the plaintiff. (Mapa v. Court of Appeals, 214 SCRA 417
[1992]).
The purpose of the summons is to inform the defendant of the complaint filed against him
and to enable the court to acquire jurisdiction over his person. It may served by the sheriff or his
deputy or any person authorized by the court.
ALTERNATIVE ANSWER:
Yes. The motion to dismiss is meritorious. Substituted service cannot be effected unless the
sheriffs return shows that he made a genuine attempt to effect personal service on the husband.
5. Extra-territorial service, when allowed
Q: In Its complaint before the RTC, Singer (Phil.). Inc., alleged that it is a corporation
organized and existing under Philippine laws: that another corporation, with the corporate
name Singer, Inc. and organized under the law of the United States, had incurred obligations
to several foreign creditors whom it refuses to pay; that although Singer (Phil.) Me. is a
corporation separate and distinct from Singer, Inc. and that Singer (Phil,). Inc. had no
participation or liability whatsoever regarding the transactions between Singer, Inc. and the
creditors, said creditors, have been demanding from Singer (Phil.). Inc. the payment of the
obligations to them (creditors of Singer, Inc.)
Singer (Phil.). Inc. therefore, prayed for Injunctive relief against the creditors (whom it
impleaded as the defendants in the action) by way of enjoining the latter from making
further demands on it for payment of the obligations of Singer. Inc. to them (creditors.)
The defendants are non-residents and without business addresses in the Philippines but in
the U.S. Consequently, Singer (Phil.), Inc. asked for leave of court to effect extraterritorial
service of summons pursuant to Sec. 17. Rule 14 of the Rules of Court. The trial court granted
the motion.
The defendants filed special appearances and questioned the jurisdiction of the court over
their persons. They contended that the court cannot acquire jurisdiction over their persons
90
because the action does not fall under any oi the situations authorizing extraterritorial
service or summons.
Is extraterritorial service of summons proper? Why? (1993 Bar Question)
Answer:
No because it is only when the action affects the personal status of the plaintiff, or any property in
the Philippines in which defendants have or claim an interest, or which the plaintiff has attached,
that extraterritorial service of summons is proper. (Sec. 17 of Rule 14) In this case, the action is
purely an action for injunction, which is a personal action as well as an action in personam and not
an action in rem or quasi in rem. Hence, personal or substituted service of summons is necessary in
order to confer jurisdiction on the court Extraterritorial service of summons on defendants will not
confer on the court jurisdiction or power to compel them to obey its orders. [Kawasaki Port
Services Corporation vs. Amores, 199 SCRA 230)
(1)
Are the rules on summons under Rule 14 of the Rules of Court applicable equally in
actions before the Regional Trial Courts as well as in the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts?
Answer:
Yes, because the procedure to be observed in the Metropolitan Trial Courts, Municipal Trial Courts
and Municipal Circuit Trial Court is the same as that observed in the Regional Trial Courts, and Rule
5 which conveyed procedure in inferior courts including summons, was repealed. (Sec. 8 of Interim
Rules).
(2)
When is extra-territorial service of summons proper?
Answer:
Extraterritorial service of summons, is proper when the defendant does not reside and is not found
in the Philippines and the action affects the personal status of the plaintiff or relates to, or the
subject of which is, property within the Philippines, in which the defendant has or claims a lien or
interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein, or the property of the defendant has been
attached within the Philippines. (Sec. 17 of Rule 14). It is also proper when the defendant ordinarily
resides within the Philippines, but is temporarily out of it. (Sec. 18 of Rule 14)
(a)
xxx
(b)
xxx
(c)
xxx
(d)
xxx
(e)
Summons may be served by mail, (2009 Bar Question)
91
SUGGESTED ANSWER:
FALSE. Rule 14 of the Rules of Court, on Summons, provide only for serving Summons (a) to
the defendant in person; or (b) if this is not possible within a reasonable time, then by substituted
service in accordance with Sec. 7 thereof; or (c) any of the foregoing two ways is not possible, then
with leave of court, by publication in accordance with same Rule.
ALTERNATIVE ANSWER:
TRUE, but only in extraterritorial service under Sec. 15 of the Rule on Summons where
service may be effected in any other manner the court may deem sufficient".
G. Motions
1. Motions in general
a. Definition of a motion
b. Motions versus pleadings
(a)
xxx
(b)
xxx
(c)
A motion is a pleading. (2%) (2007 Bar Question)
SUGGESTED ANSWER:
FALSE. A motion is not a pleading but a mere application for relief other than by a pleading
(Rule 15, Sec. 1, Rules of Court).
c. Notice of hearing and hearing of motions
Q: The Regional Trial Court rendered judgment against ST, copy of which was received by his
counsel on February 28, 2000. On March 10, 2000, ST, through counsel, filed a motion for
reconsideration of the decision with notice to the Clerk of Court submitting the motion for
the consideration of the court. On March 15, 2000, realizing that the Motion lacked a notice
of hearing, ST*s counsel filed a supplemental pleading. Was the Motion for Reconsideration
filed within the reglementary period? Explain. (5%) (2000 Bar Question)
SUGGESTED ANSWER:
Yes, because the last day for filing a motion for reconsideration was March 15 if February
had 28 days or March 16 if February had 29 days. Although the original motion for reconsideration
was defective because it lacked a notice of hearing, the defect was cured on time by its filing on
March 15 of a supplemental pleading, provided the motion was set for hearing and served on the
adverse party at least three (3) days before the date of hearing. (Sec. 4, Rule 15. 199.7 Rules of Civil
Procedure).
d. Omnibus Motion Rule
92
Q: Charisse, alleging that she was a resident of Lapu-Lapu City, filed a complaint for damages
against Atlanta Bank before RTC of Lapu-Lapu City, following the dishonor of a check she
drew in favor of Shirley against her current account which she maintained in the banks local
branch.
The bank filed a Motion to Dismiss the complaint on the ground that it failed to state a cause
of action, but it was denied. It thus filed an Answer. (2010 Bar Question)
A.
In the course of the trial, Charisse admitted that she was a US citizen residing in Los
Angeles, California and that she was temporarily billeted at the Pescado Hotel in Lapu-Lapu
City, drawing the bank to file another motion to dismiss, this time on the ground of improper
venue, since Charisse is not a resident of Lapu-Lapu City.
Charisse opposed the motion citing the omnibus motion rule. Rule on the motion. (3%)
SUGGESTED ANSWER:
The banks second motion to dismiss which is grounded on improper venue of an action is
deemed waived by the banks filing an earlier motion to dismiss without raising improper venue as
an issue, and more so when the bank filed an Answer without raising improper venue as an issue
after its first motion to dismiss was denied.
Under the omnibus motion rule (Rule 15, Sec. 8, Rules of Court) which governs the banks
motion to dismiss, such motion should include all objections then available; otherwise, all
objections not so included shall be deemed waived.
Although the improper venue became known only in the course of the trial, the same should
not be allowed to obstruct or disturb the proceedings since venue of civil actions is defined for the
convenience of the parties, may jurisdictional.
ALTERNATIVE ANSWER:
The "omnibus motion rule" should not apply, because the improper venue became known
and thus available only to the movant bank after the motions to dismiss were filed and resolved by
the court, and in the course of The trial of the case. In fairness to the defendant bank, it should not
be precluded by the "omnibus motion rule" From raising objection to the improper venue only
when said ground for objection became known to it.
The court may not resolve the second motion to dismiss precisely because of the "omnibus
motion rule", Since the bank filed an earlier motion to dismiss but did not raise the ground of
improper venue, the subsequently Filed an Answer wherein the improper venue has not again been
raised. Hence, the question of improper venue has become moot and academic.
The only grounds not barred by the "omnibus motion rule" are (a) lack of jurisdiction over
the subject matter; (b) litis pendencia; and (c) bar by prior judgment or by Statute of limitations.
B. Suppose Charisse did not raise the "omnibus motion rule, can the judge proceed to resolve
the motion to dismiss? Explain. (3%)
SUGGESTED ANSWER:
Yes, the judge can proceed to resolve the motion to dismiss, because the ground raised
therefor became known to the movant only during the trial, such that it was only. Then that the
objection became available to him.
93
C. Suppose the judge correctly denied the second motion to dismiss and rendered judgment
in favor of Charisse, ordering the bank to pay her Pl00, 000 in damages plus legal interest.
The judgment became final and executory in 2008. To date, Charisse has not moved to
execute the judgment. The bank is concerned that its liability will increase with the delay
because of the interest on the judgment award. As counsel of the bank, what move should
you take? (3%)
SUGGESTED ANSWER:
As counsel of the bank, I shall recommend to the bark as judgment obligor, to make a tender
of payment to the judgment oblige and thereafter make a consignation of the amount due by filing
an application therefor placing the same at the disposal of the court which rendered the judgment
(Arts. 1256 and 1258, Civil Code).
2. Motions for Bill of Particulars
a. Purpose and when applied for
(a)
When can a bill of particulars be availed of?
SUGGESTED ANSWER:
Before responding to a pleading, a party may move for a bill of particulars of any matter
which is not averred with sufficient definiteness or particularity to enable him properly to prepare
his responsive pleading. If the pleading is a reply, the motion must be filed within ten (10) days
from service thereof. (Sec. 1 of Rule 12)
(a)
b. Actions of the court

Q; Within the period for filing a responsive pleading, the defendant filed a motion for bill of
particulars that he set for hearing on a certain date. However, the defendant was surprised
to find on the date set for hearing that the trial court had already denied the motion on the
day of its filing, stating that the allegations of the complaint were sufficiently made.
Did the judge gravely abuse his discretion in acting on the motion without waiting for the
hearing set for the motion? (2008 Bar Question)
SUGGESTED ANSWER:
No, the judge did not gravely abuse his discretion when he denied the motion for bill of
particulars without waiting for the hearing set in the motion. Section 2, Rule 12 of the Rules of
Court authorizes the court to either deny or grant said motion outright upon the clerk of court
bringing such motion to the attention of the court. The motion may lack merit.
c. Compliance with the order and effect of noncompliance
a)
xxx
b)
What is the effect of non-compliance with the order of a bill of particulars?

94
SUGGESTED ANSWER:
a)
xxx
If the order is not complied with, the court may order the striking out of the pleading or the
portions thereof to which the order was directed or make such other order as it deems just. (Sec. 4
of Rule 12)
b)
Q: If the judge grants the motion and orders the plaintiff to file and serve the bill of
particulars, can the trial judge dismiss the case if the plaintiff does not comply with the
order? (3%) (2008 Bar Question)
SUGGESTED ANSWER:
a)
Yes, the trial judge can dismiss the case if the plaintiff failed to comply with the courts
order to file and serve the needed bill of particulars. Section 4, Rule 12 of the Rules of Court
authorizes the court to order the striking out of the pleading affected, hence the dismissal of the
complaint. To the same end is the provision of Section 3, Rule 17 of the Rules when plaintiff fails to
comply for no justifiable cause with any order of the court or with the Rules.
3. Motion to dismiss
a. Grounds
b. Resolution of motion
Q: Plaintiff filed a complaint for a sum of money against defendant with the MeTC-Makati, the
total amount of the demand, exclusive of interest, damages of whatever kind, attorneys fees,
litigation expenses, and costs, being PI .000,000. In due time, defendant filed a motion to
dismiss the complaint on the ground of the MeTCs lack of jurisdiction over the subject
matter. After due hearing, the MeTC 11) ruled that the court indeed lacked jurisdiction over
the subject matter of the complaint; and (2) ordered that the case therefore should be
forwarded to the proper Regional Trial Court immediately.
Was the court's ruling concerning jurisdiction correct? Was the courts order to forward the
case proper? Explain briefly. (5%)(2004 Bar Question)
SUGGESTED ANSWER:
Yes. The MeTC did not have jurisdiction over the case because the total amount of the
demand exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and
costs, was PI M. Its jurisdictional amount at this time should not exceed P400,000.00 (Sec. 33 of B.P.
Big. 129, as amended by R.A. No. 7691).
The court's order to forward the case to the RTC is not proper. It should merely dismiss the
complaint. Under Sec. 3 of Rule 16, the court may dismiss the action or claim, deny the motion or
order the amendment of the pleading but not to forward the case to another court.
a)
xxx
b)
xxx
95
Is summons required to be served upon a defendant who was substituted for the
deceased? Explain. (2%)
c)
d)
xxx
SUGGESTED ANSWER:
a)
xxx
b)
xxx
c)
No. A defendant who was substituted for the deceased need not be served with summons
because it is the court which orders him as the legal representative of the deceased to appear and
substitute the deceased. (Sec. 16 of Rule 3.)
d)
xxx
Q: Plaintiff filed a complaint for damages against defendant with the court. Defendant moved
to dismiss the complaint on the ground that it states no cause of action. The court, after
hearing, issued an order deferring the resolution of the motion to dismiss until the trial
since the ground therefore does not appear to be indubitable.
Do you agree with the ruling of the court? Explain. (1996 Bar Question)
Answer:
No. because whether or not the complaint states a cause of action is clear from the allegations of the
complaint and deferring the resolution of the motion to dismiss because the ground therefore is not
indubitable is not proper. (Foster Parents Plan vs. Demetriou, 142 SCRA 505)
c. Remedies of plaintiff when the complaint is dismissed
Q: Defendant Xanthe filed a Motion to Dismiss Yogis complaint before the Regional Trial
Court.
(a)
The court grants the Motion to Dismiss.
Explain the remedies or procedure to be resorted to or to be pursued by plaintiff to have the

order of dismissal reversed and corrected finally.
Answer:
(a)
The remedy is to appeal to the court of Appeals from the order of dismissal within fifteen
days from notice thereof by filing a notice of appeal with the Regional Trial Court and serving a
copy thereof on the adverse party.
However, if only a question of law is involved, the remedy is to file a petition for review on
certiorari with the Supreme Court within fifteen days from notice of the order or the denial of his
motion for reconsideration and serving a copy thereof on the Regional Trial Court and on the
adverse party. (Laxamana vs. CA, 143 SCRA 643)
d. Remedies of the defendant when the motion is denied
Q: Defendant Xanthe filed a Motion to Dismiss Yogis complaint before the Regional Trial
Court.
96
(b)
The court denies the Motion to Dismiss.
1)
May Xanthe appeal the denial? Reasons.
2)
How and on what ground or grounds may defendant Xanthe bring the denial of his
Motion to Dismiss to the appellate courts? Explain.
Answer:
b)
1) No because the order of denial is merely interlocutory, and only final judgments or
orders are subject to appeal.
2) Defendant X may bring the denial of his Motion to Dismiss to the appellate (superior)
courts by filing a petition for certiorari on the ground of lack or excess of jurisdiction or grave abuse
of discretion. (Newsweek vs. IAC, 142 SCRA 171)
e. When grounds pleaded as affirmative defenses
a.
xxx
b.
xxx
c.
A, who is engaged in tile installation business, was sued by EE Industries for breach of
contract for installing different marble tiles iri its offices as provided in their contract.
Without filing any motion to dismiss, A filed its Answer with Counterclaim theorizing that EE
Industries has no legal capacity to sue because it is not a duly registered corporation. By way
of counterclaim, A asked for moral and actual damages as her business depleted as a result
of the withdrawal and cancellation by her clients of their contracts due to the filing of the
case. The case was dismissed after the trial court found that EE Industries is not a registered
corporation and therefore has no legal capacity to sue. However, it set a date for the
reception of evidence on As counterclaim. EE Industries opposed on the ground .that the
counterclaim could no longer be prosecuted, in view bf the dismissal of the main case. Is the
stand of EE Industries sustainable? Explain. (2%)
SUGGESTED ANSWER:
a.
xxx
b.
xxx
c.
No, because if no motion to dismiss has been filed, any of the grounds for dismissal
provided in the Rules may be pleaded as an affirmative defense in the answer which may include a
counterclaim. This is what A did by filing an Answer alleging the lack of legal capacity of EE
Industries to sue because it is not a duly registered corporation with a counterclaim for damages.
The dismissal of the complaint on this ground is without prejudice to the prosecution of the
counterclaim in the same action because it is a compulsory counterclaim. (Sec. 6 of Rule 16.)
Q: Fe filed a suit for collection of P387,000 against Ramon in the RTC of Davao City. Aside
from alleging payment as a defense, Ramon in his answer set up counterclaims for P100,000
as damages and P30,000 as attorneys fees as a result of the baseless filing of the complaint,
as well as for P250,000 as the balance of the purchase price of the 30 units of air
conditioners he sold to Fe.
97
a)
xxx
Suppose Ramons counterclaim for the unpaid balance is P310,000, what will happen
to his counterclaims if the court, dismisses the complaint after holding a preliminary
hearing on Ramons affirmative defenses? (3%) (2008 Bar Question)
b)
SUGGESTED ANSWER:
The dismissal of the complaint is without prejudice to the right of the defendant
(Ramon) to prosecute his counterclaim in the same or in a separate action [Sec. 6, Rule 16, last par.;
Pingav. Heirs of Santiago, 494 SCRA 393 [2006]).
b)
Under the same premise as paragraph (b) above, suppose that instead of alleging
payment as a defense in his answer, Ramon filed a motion to dismiss on that ground, at the
same time setting up his counterclaims, and the court grants his motion. What will happen to
his counterclaims? (3%)(2008 Bar Question)
c)
SUGGESTED ANSWER:
Since Ramon filed only a motion to dismiss, not an answer, the dismissal of the complaint
would also bring about the dismissal of his counterclaims but he can file a separate action for his
permissive counterclaims. The compulsory counterclaims are deemed waived when he filed a
motion to dismiss the complaint instead of answering the same. (Financial Building Corporation v.
Forbes Park Association, Inc., 338 SCRA 346 2000]).
c)
H. Dismissal of actions
1. Dismissal upon notice by plaintiff; two-dismissal rule
Q: Before any answer on motion for summary judgment could be filed by the defendant, the
plaintiff filed notice of dismissal of his complaint. The trial court simply noted the dismissal.
Is the case considered dismissed. (1989 Bar Question)
Answer:
Yes, because the rule merely requires the filing of a notice of dismissal and does not require
an order of the court dismissing the case. (Sec. 1 of Rule 17)
Q: X filed an action for reconveyance against Y. Y forthwith filed his answer and served it on
X. A week later, X filed a motion to withdraw the action since he could not avail the services
of counsel. The court dismissed the complaint based on failure to prosecute. A month after, X
instituted the very same action against Y. Y moved to dismiss the case invoking res judicata.
He alleged that dismissal of the first case had the effect of an adjudication upon the merits
since the courts Order had no condition that it was without prejudice. The court dismissed
the subsequent case on the ground of res judicata.
Was the trial court correct? Explain. (1996 Bar Question)
Answer:
No, because the dismissal of the complaint on motion of X is without prejudice under Sec. 2
of Rule 17. The Court erred in dismissing the complaint for failure to prosecute for an unreasonable
length of time under Sec. 3 of Rule 17.
98
Q: Lawrence filed a complaint against Grace to collect a loan of P50,000. Later, because of
their intimate relationship in the past, Lawrence filed a notice of dismissal of his complaint.
Subsequently, the two had a serious misunderstanding so that Lawrence again filed a
complaint against Grace to collect another loan of P100,000. Lawrence and Grace reconciled
after which, the former withdraw his complaint before the latter could file her answer or a
motion for summary judgment. Was the dismissal of the second complaint with or without
prejudice? Explain. (1989 Bar Question)
Answer:
The dismissal of the second complaint is without prejudice because it is based on another
claim of P100,000.00. If the dismissal were based on the same claim of P50,000.00 it would be with
prejudice. (Id.)
Q: Lawrence filed a complaint against Grace to collect a loan of P50,000. Later, because of
their intimate relationship in the past, Lawrence filed a notice of dismissal of his complaint.
Subsequently, the two had a serious misunderstanding so that Lawrence again filed a
complaint against Grace to collect another loan of P100,000. Lawrence and Grace reconciled
after which, the former withdraw his complaint before the latter could file her answer or a
motion for summary judgment. Was the dismissal of the second complaint with or without
prejudice? Explain. (1989 Bar Question)
Answer:
The dismissal of the second complaint is without prejudice because it is based on another
claim of P100,000.00. If the dismissal were based on the same claim of P50,000.00 it would be with
prejudice. (Id.)
2. Dismissal upon motion by plaintiff; effect on existing counterclaim
Q: Antique dealer Mercedes borrowed P1, 000,000 from antique collector Benjamin.
Mercedes issued a postdated check in the same amount to Benjamin to cover the debt.
On the due date of the check, Benjamin deposited it but it was dishonored. As despite
demands, Mercedes failed to make good the check, Benjamin filed in January 2009 a
complaint for collection of sum of money before the RTC of Davao.
Mercedes filed in February 2009 her Answer with Counterclaim, alleging that before the
filing of the case, she and Benjamin had entered into a dacion enpago agreement in which
her vintage P1, 000,000 Rolex watch which was taken by Benjamin for sale on commission
was applied to settle her indebtedness; and that she incurred expenses in defending what
she termed a "frivolous lawsuit.. She accordingly prayed for P50, 000 damages.
A. Benjamin soon after moved for the dismissal of the case. The trial court accordingly
dismissed the complaint. And it also dismissed the Counterclaim.
Mercedes moved for a reconsideration of the dismissal of the Counterclaim. Pass upon
Mercedes' motion. (3%) (2010 Bar Question)
SUGGESTED ANSWER:
99
Mercedes' Motion for Reconsideration is impressed with merit: the trial court should not
have dismissed her counter-claim despite the dismissal of the Complaint.
Since it was the plaintiff (Benjamin) who moved for the dismissal of his Complaint, and at a
time when the defendant (Mercedes) had already filed her Answer thereto and with counterclaim,
the .dismissal of the Complaint should not carry with it the dismissal of the counterclaim without
the conformity of the defendant-counterclaimant. The Revised Rules of Court now provides in Rule
17, Sec. 2 there or that "[1]a counterclaim has been pleaded by a defendant prior to the service
upon him of the plaintiff's motion for dismlasa1, the dismissal shall be limited to the complaint. The
dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim x x
x.
I. Pre-trial
1. Concept of pre-trial, Nature and purpose
Q: Is pre-trial mandatory in all trial courts? Explain. (1989 Bar Question)
Answer:
Pre-trial is mandatory in all trial courts in civil cases. (Sec. 1 of Rule 30). However, in
criminal cases, pre-trial may be held only when the accused and his counsel agree. (Sec. 1 of Rule
118).
In summary procedure, a preliminary conference is held in both civil and criminal cases.
(Sec. 6 and 13)
2. Notice of pre-trial
Q: Ulio filed a complaint in the Municipal Trial Court of Lanuza for the recovery of a sum of
money against Juan. The latter filed his answer to the complaint serving a copy thereof on
Ulio.
After the filing of the answer of Juan, whose duty is it to have the case set for pre-trial? Why?
SUGGESTED ANSWER:
After the filing of the answer of Juan, the plaintiff has the duty to promptly move ex parte
that the case be set for pre-trial. (Sec. 1, Rule 18, 1997 Rules of Civil Procedure). The reason is that
it is the plaintiff who knows when the last pleading has been filed and it is the plaintiff who has the
duty to prosecute.
ALTERNATIVE ANSWER:
In the event the plaintiff files a reply, his duty to move that the case be set for pre-trial
arises after the reply has been served and filed.
3. Appearance of parties; effect of failure to appear
100
Q: Jose, Lito and Luis executed a promissory note in favor of Teresita Comparza which reads:
For value received we promise jointly and severally to pay Teresita Comparza the sum of
P300.000.00 on or before 31 December 1994." All three signed the note.
Despite demands after due date no payment was made on the note prompting Teresita to
sue the three promissors. Summonses together with copies of the complaint were served on
all of them but only Lito answered. Upon Teresitas motion, Jose and Luis were declared in
default.
Against whom and upon what basis should the court try the case considering that
only Lito of the three defendants filed an answer and a default order was issued against Jose
and Luis? Discuss fully.
1.
Considering that a defaulted defendant cannot participate in the trial, can Lito
present Luis on the witness stand to testify after the latter was defaulted? Discuss fully.
2.
Suppose Lito dies and the case is dismissed as against him, what is the effect of his
answer as far as his solidary co-debtors Jose and Luis are concerned? Discuss fully. (1995
Bar Question)
3.
Answer:
Since the complaint states a common cause of action against the three defendants, the court
shall try the case against all upon the answer filed by Lito and render judgment upon the evidence
presented. (Sec. 4, Rule 18) In this case, the answer of Lito inures to the benefit of Jose and Luis,
unless the defense of Lito is personal to him alone.
1.
There is no provision in the Rules disqualifying parties declared in default from taking the
witness stand for non-disqualified parties. A party declared in default loses his standing in court,
but this must be understood to mean only the forfeiture of ones rights as a party litigant. He is not
disqualified to be a witness or a deponent in a case. (Cavili vs. Florendo, 154 SCRA 610)
2.
If Lito dies after he has presented evidence, the same inures to the benefit of Jose and Luis.
But if Lito dies before he has presented evidence, Jose and Luis cannot present such evidence.
3.
Answer:
(2)
17)
101
4. Distinction between pre-trial in civil case and pre-trial in criminal case

Q: Give three distinctions between a pre-trial in a criminal case and a pre-trial in a civil case.
(1997 Bar Question)
Answer:
Three distinctions between a pre-trial in a criminal case and a pre-trial in a civil case are as follows:
(a)
The pre-trial in a criminal case is conducted only where the accused and counsel agree"
(Rule 118, Sec. 1): while the pre-trial in a civil case is mandatory. (Sec. 1 of former Rule 20; Sec. 1 of
new Rule 18).
(b)
The pre-trial in a criminal case does not consider the possibility of a compromise, which is
one important aspect of the pre-trial in a civil case. (Sec. 1 of former Rule 20; Sec. 2 of new Rule 18).
(c)
In a criminal case, a pre-trial agreement is required to be reduced to writing and signed by
the accused and his counsel (See: Rule 118, Sec. 4); while in a civil case, the agreement may be
contained in the pre-trial order. (Sec. 4 of former Rule 20; See 7 of new Rule 78).
5. Alternative Dispute Resolution (ADR) (Special Rules of Court on ADR (A.M. No. 07-11-08SC))
Q: Upon termination of the pre-trial, the judge dictated the pretrial order in the presence of
the parties and their counsel, reciting what had transpired and defining three (3) issues to
be tried.
[a]
xxx
[b]
Suppose trial had already commenced and after the plaintiffs second witness had
testified, the defendants counsel moves for the amendment of the pre-trial order to include
a fifth (5th) triable issue vital to his clients defense. Should the motion be granted over the
objection of plaintiffs counsel? Reasons. (3%) (2009 Bar Question)
SUGGESTED ANSWER:
The motion may be denied since trial had already commenced and two witnesses for the
plaintiff had already testified. Courts are required to issue pre-trial Order after the pre-trial
conference has been terminated and before trial begins, precisely because the reason for such
Order is to define the course of the action during the trial. Where trial had already commenced,
more so the adverse party had already presented witnesses, to allow an amendment would be
unfair to the party who had already presented his witnesses. The amendment would simply render
nugatory the reason for or purpose of the pre-trial Order.
Sec.7 of Rule 18 on pre-trial in civil actions is explicit in allowing a modification of the pretrial Order before trial begins to prevent manifest injustice.
Q: Mayor TM was charged of malversation through falsification of official documents.
Assisted by Atty. OP as counsel de parte during pre-trial, he signed together with
Ombudsman Prosecutor TG a Joint Stipulation of Facts and Documents." which was
presented to the Sandiganbayan. Before the court could issue a pre-trial order but after
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some delay caused by Atty. OP, he was substituted by Atty. QR as defense counsel. Atty. QR
forthwith filed a motion to withdraw the Joint Stipulation," alleging that it is prejudicial to
the accused because it contains, inter alia, the statement that the Defense admitted all the
documentary evidence of the Prosecution," thus leaving the accused little or no room to
defend himself, and violating his right against self-incrimination.
Should the court grant or deny QRs motion? Reason. (5%)(2004 Bar Question)
SUGGESTED ANSWER:
The court should deny QRs motion. If in the pre-trial agreement signed by the accused and
his counsel, the accused admits the documentary evidence of the prosecution, it does not violate his
right against self-incrimination. His lawyer cannot file a motion to withdraw. A pre-trial order is not
needed. (Bayas v. Sandiganbayan, 391 SCRA 415[2002D. The admission of such documentary
evidence is allowed by the rule. [Sec. 2 of Rule 118; People v. Hernandez, 260 SCRA 25
[1996]).
J. Intervention
1. Requisites for intervention
Q: What are the requisites for an intervention by a non- party in an action pending in court?
SUGGESTED ANSWER:
The requisites for Intervention are:
1)
Legal interest in the matter in controversy; or
2)
Legal interest In the success of either of the parties; or
3)
Legal interest against both; or
4)
So situated as to be adversely affected by a distribution or other disposition of
property in
the custody of the court or of an officer thereof.
5)
Intervention will not unduly delay or prejudice the adjudication of the rights of
original
parties;
6)
Intervenors rights may not be fully protected In a separate proceeding.
[Acenas U v. Court of .Appeals, 247 SCRA 773 (19951; Sec. I, Rule 19, 1997 Rules of Civil Procedure.)
2. Remedy for the denial of motion to intervene
Q: Half-brothers Roscoe and Salvio inherited from their father a vast tract of unregistered
land. Roscoe succeeded in gaining possession of the parcel of land in its entirety and
transferring the tax declaration thereon in his name. Roscoe sold the northern half to Bono,
Salvios cousin. Upon learning of the sale, Salvio asked Roscoe to convey the southern half to
him. Roscoe refused as he even sold one- third of the southern half along the West to Carlo.
Thereupon, Salvio filed an action for the reconveyance of the southern half against Roscoe
only. Carlo was not impleaded. After filing his answer, Roscoe sold the middle third of the
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southern half to Nina. Salvio did not amend the complaint to implead Nina.
After trial, the court rendered judgment ordering Roscoe to reconvey the entire southern
half to Salvio. The judgment became final and executory. A writ of execution having been
issued, the Sheriff required Roscoe, Carlo and Nina to vacate the southern half and yield
possession thereof to Salvio as the prevailing party. Carlo and Nina refused, contending that
they are not bound by the judgment as they are not parties to the case. Is the contention
tenable? Explain fully. (4%)(2008 Bar Question)
SUGGESTED ANSWER:
Yes, in case of Transfer of interest pending litigation, the action may be continued by or
against the original party unless the court, upon motion, directs a person to be substituted in the
action or joined with the original party (Sec. 19, Rule 3, Rules of Court). The owners of property
over which reconveyance is asserted are indispensable parties and must be joined in the action.
Accordingly, the contention of Carlo who is such party to the action filed by Salvio, is tenable. He is
not bound by the judgment because he became a co-owner of the land before the case was filed and
yet he has not been included as a party thereto [Matuguina Integrated Word Products, Inc. v. Court
of Appeals, 263 SCRA 490[1996]; Ma. Valentina Santana-Cruz v. Court of Appeals, et. ah, 361 SCRA
520 [2001]).
Nina, however is a successor-in-interest of Roscoe and privy to the case. Hence, she is bound
by the judgment as against Roscoe although she is not party to the case (Sec. 19, Rule 3; Cabresos v.
Tero, 166 SCRA 400 [1988]). A judgment is conclusive between the parties and their successors-ininterest by title subsequent to the case (Sec. 47, Rule 39, Rules of Court).
[Parenthetically, it is worth mentioning that the sale of the northern one-half of the vast
tract of land owned in common by Roscoe and Salvio, is void as to the northern half but valid as to
the presumed one-half undivided interest of Roscoe. The existence of the coownership must first
be determined to exist before the right of reconveyance on the basis of a constructive trust may
prosper. However, in the problem the judgment has become final and executory, so the problem is
centered on the remedial law aspect].
K. Subpoena
1. Subpoena duces tecum
Q: In an admiralty case filed by A against Y Shipping Lines (whose principal offices are in
Manila) in the Regional Trial Court, Davao City, the court issued a subpoena duces tecum
directing Y, the president of the shipping company, to appear and testify at the trial and to
bring with him several documents.
(a)
On what valid ground can Y refuse to comply with the subpoena duces tecum?
(b)
How can A take the testimony of Y and present the documents as exhibits other than
through the subpoena from the Regional Trial Court? (1997 Bar Question)
Answer:
(a)
Y can refuse to comply with the subpoena duces tecum on the ground that he resides more
than 50 (now 100) kilometers from the place where he is to testify. (Sec. 9 of former Rule 23; Sec.
10 of new Rule 21).
(b)
A can take the testimony of Y and present the documents as exhibits by taking his
deposition through oral examination or written interrogatories. (Rule 24; new Rule 23) He may
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also file a motion for the production or inspection of documents. (Rule 27).
Alternative Answer:
(a)
The witness can also refuse to comply with the subpoena duces tecum on the ground that
the documents are not relevant and there was no tender of fees for one day's attendance and the
kilometrage allowed by the rules.
2. Subpoena ad testificandum
[a]
xxx
[b]
The viatory right of a witness served with a subpoena ad testificandum refers to his
right not to comply with the subpoena. (2009 Bar Question)
SUGGESTED ANSWER:
FALSE. The viatory right of a witness, embodied in Sec. 10, Rule 21 of the Rules of Civil
Procedure, refers to his right not to be compelled to attend upon a subpoena, by reason of the
distance from the residence of the witness to the place where he is to testify. It is available only in
civil cases (People v. Montejo, 21 SCRA 722[1965]).
3. Quashing of subpoena
Q: On August 15,2008, Edgardo committed estafa against Petronilo in the amount of P3
Million. Petronilo brought his complaint to the National Bureau of Investigation, which
found that Edgardo had visited his lawyer twice, the first time on August 14, 2008 and the
second on August 16, 2008; and that both visits concerned the swindling of Petronilo. During
the trial of Edgardo, the RTC issued a subpoena ad testificandum to Edgardos lawyer for him
to testify on the conversations during their first and second meetings. May the subpoena be
quashed on the ground of privileged communication? Explain fully. (4%)
SUGGESTED ANSWER:
No, The subpoena may not be simply quashed on the allegation that the testimony to be
elicited constitutes privileged communication. It may be noted that the accused committed the
crime of swindling on August 15, 2008, whereas he first visited his lawyer on August 14, 2008 or
before he committed the swindling. Clearly the conversations the accused had with his lawyer
during such first visit, before he committed the swindling cannot be protected by the privilege
between attorney and client because the crime had not been committed yet and it is no part of a
lawyers professional duty to assist or aid in the commission of a crime; hence not in the course of
professional employment.
The second visit by accused Edgardo to his lawyer on the next day (August 16, 2008) after
the swindling was committed may also suffer from the same infirmity as the conversations had
during their first meeting inasmuch as there could not be a complaint made immediately after the
estafa was committed. The privilege covering a lawyer-client relation under Sec. 24, (par(b), Rule
130, may not be invoked, as it is not a ground for quashal of a subpoena ad testificandum under
Section 4, Rule 21 of the Rules of Court.
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Although the subpoena ad testificandum may not be quashed the privilege covers
conversations with a view to professional employment." It can be invoked at the trial but not to
quash the subpoena.
L. Modes of Discovery
Q: Describe briefly at least five (5) modes of discovery under the Rules of Court. (5%) (2000
Bar Question)
SUGGESTED ANSWER:
Five modes of discovery under the Rules of Court are:
(1)
Deposition. By leave of court after jurisdiction has been obtained over any defendant or
over property which is the subject of the action, or without such leave after an answer has been
served, the testimony of any person, whether a party or not, may be taken, at the instance of any
party, by deposition upon oral examination or written interrogatories, (Sec. 1, Rule 23, 1997 Rules
of Civil Procedure.)
(2)
Interrogatories to parties. Under the same conditions specified in section 1 of Rule 23, any
party shall file and serve upon any adverse party written interrogatories regarding material and
relevant facts to be answered by the party served. (Sec. 1, Rule 25, 1997 Rules of Civil Procedure.)
(3)
Admission by adverse party. At any time after issues have been joined, a party may file and
serve upon any other party a written request for the admission by the latter of the genuineness of
any material and relevant document or of the truth of any material and relevant matter of fact. (Sec.
1, Rule 26, 1997 Rules of Civil Procedure.)
(4)
Production or inspection of documents or things. Upon motion of any party showing good
cause therefor, a court may order any party to produce and permit the inspection and copying or
photographing of any designated documents, etc. or order any party to permit entry upon
designated land or property for inspecting, measuring, surveying, or photographing the property or
any designated relevant object or operation thereon. (Sec. 1, Rule 27, 1997 Rules of Civil
Procedure.)
(5)
Physical and mental examination of persons. In an action in which the mental or physical
condition of a party is in controversy, the court in which the action is pending may in its discretion
order him to submit to a physical or mental examination by a physician. (Sec. 1, Rule 28, 1997 Rules
1. Depositions pending action; depositions before action or pending appeal
Q: In an admiralty case filed by A against Y Shipping Lines (whose principal offices are in
Manila) in the Regional Trial Court, Davao City, the court issued a subpoena duces tecum
directing Y, the president of the shipping company, to appear and testify at the trial and to
bring with him several documents.
a.
On what valid ground can Y refuse to comply with the subpoena duces tecum?
b.
How can A take the testimony of Y and present the documents as exhibits other than
through the subpoena from the Regional Trial Court? (1997 Bar Question)
Answer:
a.
Y can refuse to comply with the subpoena duces tecum on the ground that he resides more
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than 50 (now 100) kilometers from the place where he is to testify. (Sec. 9 of former Rule 23; Sec.
10 of new Rule 21).
b.
A can take the testimony of Y and present the documents as exhibits by taking his
deposition through oral examination or written interrogatories. (Rule 24; new Rule 23) He may
also file a motion for the production or inspection of documents. (Rule 27).
Alternative Answer:
b.
The witness can also refuse to comply with the subpoena duces tecum on the ground that
the documents are not relevant and there was no tender of fees for one day's attendance and the
kilometrage allowed by the rules.
2. Production or inspection of documents or things
Q: Continental Chemical Corporation (CCC) filed a complaint for a sum of money against
Barstow Trading Corporation (BTC) for the latters failure to pay for its purchases of
industrial chemicals. In its answer, BTC contended that it refused to pay because CCC
misrepresented that the products it sold belonged to a new line, when in fact they were
identical with CCCs existing products. To substantiate its defense, BTC filed a motion to
compel CCC to give a detailed list of the products ingredients and chemical components,
relying on the right to avail of the modes of discovery allowed under Rule 27. CCC objected,
invoking confidentiality of the information sought by BTC.
Resolve BTCs motion with reasons. (3%) (209 Bar Question)
SUGGESTED ANSWER:
I will deny the motion. The ingredients and chemical components of CCCs products are
trade secrets within the contemplation of the law. Trade secrets may not be the subject of
compulsory disclosure by reason of their confidential and privileged character. Otherwise, CCC
would eventually be exposed to unwarranted business competition with others who may imitate
and market the same kinds of products in violation of CCCs proprietary rights. Being privileged, the
detailed list of ingredients and chemical components may not be the subject of mode of discovery
under Rule 27, Section 1 which expressly makes privileged information an exception from its
coverage (AirPhilippines Corporation v. Pennswell, Inc., 540 SCRA 215 [2007]).
A.
xxx
B.
The plaintiff sued the defendant in the RTC to collect on a promissory note, the terms
of which were stated in the complaint and a photocopy attached to the complaint as an
annex. Before answering, the defendant filed a motion for an order directing the plaintiff to
produce the original of the note so that the defendant could inspect it and verify his
signature and the handwritten entries of the dates and amounts.
(1)
Should the judge grant the defendant's motion for production and inspection of the
original of the promissory note? Why? (2%)
(2)
Assuming that an order for production and inspection was issued but the plaintiff
failed to comply with it, how should the defendant plead to the alleged execution of the note?
107
(3%)
SUGGESTED ANSWER:
A.
xxx
(1) Yes, because upon motion of any party showing good cause, the court in which
the action is pending may order any party to produce and permit the inspection of
designated documents. (Rule 27). The defendant has the right to inspect and verify the
original of the promissory note so that he could intelligently prepare his answer.
B.
(2) The defendant is not required to deny under oath the genuineness and due execution of
the promissory note, because of the non-compliance by the plaintiff with the order for production
and inspection of the original thereof. (Rule 8, sec. 8).
ALTERNATIVE ANSWER:
B.
(2) The defendant may file a motion to dismiss the complaint because of the refusal of the
plaintiff to obey the order of the court for the production and inspection of the promissory note.
[Rule 29 Sec. 3(c)]
3. Consequences of refusal to comply with modes of discovery
Q: An heir/oppositor in a probate proceeding filed a motion to remove the administrator on
the grounds of neglect of duties as administrator and absence from the country. On his part
the heir/oppositor served written interrogatories to the administrator preparatory to
presenting the latter as a witness. The administrator objected, insisting that the modes of
discovery apply only to ordinary civil actions, not special proceedings. Rule on the matter.
SUGGESTED ANSWER:
The administrators contention that the modes of discovery apply only to ordinary civil
actions and not to special proceedings is not correct. Section 2, Rule 72 of the Rules of Court
provides that: In the absence of special provisions, the rules provided for in ordinary civil actions
shall be, as far as practicable, applicable in special proceedings. There is no provision to the
contrary that would preclude the application of the modes of discovery, specifically Interrogatories
to Parties under Rule 25 of the Rules, to probate proceedings.
amounting to P167,899. He attached to the complaint the Bill of Lading.
A.
xxx
B.
xxx
C.
On July 21. 2009, B Lines served on A a "Notice to Take Deposition, setting the
deposition on July 29, 2009 at 8:30 a.m. at the office of its counsel in Makati. A failed to
108
appear at the deposition-taking, despite notice. As counsel for B Lines, how would you
proceed? (3%) (2010 Bar Question)
SUGGESTED ANSWER:
As counsel for B Lines (which gave notice to take the deposition), I shall proceed as follows:
a)
Find out why A failed to appear at the deposition taking, despite notice;
b)
If failure was for valid reason, then set another date for taking the deposition;
c)
If failure to appear at deposition taking was without valid reason, then I would me a
motion/application in the court where the action is pending, for an, order to show cause for his
refusal to submit to the discovery; and
d)
For the court to issue appropriate Order provided under Rule 29 of the Rules, for
noncompliance
with the show-cause order, aside from contempt of court.
M. Trial
1. Order of trial; reversal of order
Q: What is reverse trial and when may it be resorted to? Explain briefly. (5%) (2007 Bar
Question)
SUGGESTED ANSWER:
A reverse trial is one where the defendant or the accused present evidence ahead of the
plaintiff or prosecution and the latter is to present evidence by way of rebuttal to the formers
evidence. This kind of trial may take place in a civil case when the defendants Answer pleads new
matters by way of affirmative defense, to defeat or evade liability for plaintiffs claim which is not
denied but controverted.
In a criminal case, a reverse trial may take place when the accused made known to the trial
court, on arraignment, that he is to adduce affirmative defense of a justifying or exempting
circumstance and thus impliedly admitting the act imputed to him. The trial court may then require
the accused to present evidence first, proving the requisites of the justifying or exempting
circumstance he is invoking, and the prosecution to present rebuttal evidence controverting the
same.
N. Demurrer to evidence
1. Waiver of right to present evidence
Q: Carlos filed a complaint against Pedro in the Regional Trial Court of Ozamis City for the
recovery of the ownership of a car. Pedro filed his answer within the reglementary period.
After the pre-trial and actual trial, and after Carlos has completed the presentation of his
evidence, Pedro moved for the dismissal of the complaint on the ground that under the facts
proven and the law applicable to the case, Carlos is not entitled to the ownership of the car.
The Regional Trial Court granted the motion for dismissal. Carlos appealed the order of
dismissal and the appellate court reversed the order of the trial court. Thereafter, Pedro
filed a motion with the Regional Trial Court asking the latter to allow him to present his
evidence. Carlos objected to the presentation of evidence by Pedro.
109
Should the Regional Trial Court grant Pedro's motion to present his evidence? Why (5%)
(2001 Bar Question)
SUGGESTED ANSWER:
No. Pedro's motion should be denied. He can no longer present evidence. The Rules provide
that if the motion for dismissal is granted by the trial court but on appeal the order of dismissal is
reversed, he shall be deemed to have waived the right to present evidence. (Sec. 1 of Rule 33, 1997
Rules of Civil Procedure)
ALTERNATIVE ANSWER:
No, because when the appellate court reversed the order of the trial court it should have
rendered judgment in favor of Carlos. (Quebral v. Court of Appeals, 252 SCRA 353, 1996)
2. Demurrer to evidence in a civil case versus demurrer to evidence in a criminal case
Q: Distinguish the effects of the filing of a demurrer to the evidence in a criminal case and its
filing in a civil case. (5%) (2007 Bar Question)
SUGGESTED ANSWER:
The following are the distinctions in effects of demurrer to the evidence in criminal cases from that
in civil cases:
1.
In criminal cases, demurrer to the evidence requires prior leave of court, otherwise the
accused would lose his right to present defense evidence if filed and denied; in civil cases, no leave
of court is required for filing such demurrer.
2.
In criminal cases, when such demurrer is granted, the dismissal of the case is not
appealable inasmuch as the dismissal would amount to an acquittal, unless made by a court acting
without or in excess of jurisdiction; in civil cases, when such demurrer is granted, the dismissal of
the case can be appealed by the plaintiff.
3.
In criminal cases, the accused loses his right to present his defense-evidence in the trial
court when he filed the demurrer without prior leave of court; while in civil cases, the defendant
loses his right to present his defense-evidence only if the plaintiff appealed such dismissal and the
case is before the appellate court already since the case would be decided only on the basis of
plaintiffs evidence on record.
Q: Compare the effects of a denial of demurrer to evidence in a civil case with those of a
denial of demurrer to evidence in a criminal case. (2003 Bar Question)
SUGGESTED ANSWER:
In a civil case, the defendant has the right to file a demurrer to evidence without leave of
court. If his demurrer is denied, he has the right to present evidence. If his demurrer is granted and
on appeal by the plaintiff, the appellate court reverses the order and renders judgment for the
plaintiff, the defendant loses his right to present evidence. (Rule 33).
110
In a criminal case, the accused has to obtain leave of court to file a demurrer to evidence. If
he obtains leave of court and his demurrer to evidence is denied, he has the right to present
evidence in his defense. If his demurrer to evidence is granted, he is acquitted and the prosecution
cannot appeal.
If the accused does not obtain leave of court and his demurrer to evidence is denied, he
waives his right to present evidence and the case is decided on the basis of the evidence for the
prosecution.
The court may also dismiss the action on the ground of insufficiency of the evidence on its
own initiative after giving the prosecution the opportunity to be heard. (Sec. 23 of Rule 119)
A.
After the prosecution rested its case in a criminal action for rape, the accused filed a
demurrer to the evidence.
(a)
If the court denies said motion, may the accused adduce evidence in his defense?
Answer:
A.
(a) If the accused had obtained prior leave of court to file a demurrer to the evidence, he
may adduce evidence in his defense upon denial of his motion for dismissal.
However, if he had not obtained prior leave of court, he waives the right to present evidence and
submits the case for judgment on the basis of the evidence for the prosecution. (Sec. 15 of Rule 19
as amended)
(b)
Is the rule on demurrer to evidence the same in civil actions?
Answer:
(b)
No. In civil cases, the defendant has the right to adduce evidence if his motion for
dismissal is denied. However, if the motion is granted and the order of dismissal is reversed on
appeal, he loses his right to present evidence. (Sec. 1 of Rule 35)
B.
Magdalena Campos, a married woman and Santiago Mendoza, a married man, were
indicted for adultery in an Information filed by the Prosecutor of Bataan upon a sworn
complaint filed by Mrs. Cynthia Mendoza, wife of Santiago. Both accused filed a motion to
quash alleging that the trial court has not acquired Jurisdiction over the case because no
complaint has been filed by the husband of Magdalena Campos. They cite Section 5, Rule 110
of the Revised Rules of Court which provides, among others, that the crime of adultery "...
shall not be prosecuted except upon a complaint filed by the offended spouse." How would
you resolve the motion to quash?
Answer:
B. Motion to quash granted. The offended spouse who should have filed the sworn complaint for
adultery was the husband of Magdalena Santos, not the wife of Santiago Mendoza. Adultery is
committed by any married woman who shall have sexual intercourse with a man not her husband
and by the man who has carnal knowledge of her knowing her to be married. (Art. 333, RPC)
Another Answer:
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Motion to quash denied. The sworn complaint of Mrs. Cynthia Mendoza as the offended spouse is
sufficient compliance with the rule which requires both the guilty parties to be charged, if both are
alive.
Q: AX, a Makati-bound paying passenger of PBU, a public utility bus, died instantly on board
the bus on account of the fatal head wounds he sustained as a result of the strong impact of
the collision between the bus and a dump truck that happened while the bus was still
travelling on EDSA towards Makati. The foregoing facts, among others, were duly established
on evidence-in-chief by the plaintiff TY, sole heir of AX, in TTs action against the subject
common carrier for breach of contract of carriage. After TY had rested his case, the common
carrier filed a demurrer to evidence, contending that plaintiffs evidence is insufficient
because it did not show (1) that defendant was negligent and (2) that such negligence was
the proximate cause of the collision.
Should the court grant or deny defendants demurrer to evidence? Reason briefly. (5%)
(2004 Bar Question)
SUGGESTEDANSWER:
No. The court should not grant defendants demurrer to evidence because the case is for
breach of contract of carriage. Proof that the defendant was negligent and that such negligence was
the proximate cause of the collision is not required. (Articles 1170 and 2201, Civil Code; (Mendoza
vs. Phil. Airlines, Inc., 90 Phil. 836 [1952]); Batangas Transportation Co. v. Caguimbal, 22 SCRA 171
[1968]; Abeto v. PAL, 115 SCRA 489 [1982]; Aboitiz v. Court of Appeals, 129 SCRA 95 [1984]).
Q: Charged with murder, Jorge Dumatol filed a demurrer to the evidence after the
prosecution rested on the ground that there is no evidence of the corpus delicti. Several
witnesses testified that the accused shot the victim and threw the body into the ocean.
Notwithstanding a diligent search, the body was not found. Evidence was introduced to the
effect that the waters where the body was thrown is shark-infested.
Is the demurrer tenable? Explain your answer. (1990 Bar Question)
Answer:
No, because the testimony of several witnesses that the accused shot the victim and. threw his body
into the ocean which was shark-infested and that despite diligent search the body was not found, is
sufficient evidence of the corpus delicti. In murder, the corpus delicti is the fact of death, whether or
not feloniously caused. It does not refer to the body of the murdered person. (People v. Taruc, 16
SCRA 834; People v. Fontanosa, 20 SCRA 249)
O. Judgments and Final Orders
Q: What is the difference between a judgment and an opinion of the court? 2.5% (2006 Bar
Question)
SUGGESTED ANSWER:
The judgment or fallo is the final disposition of the Court which is reflected in the
dispositive portion of the decision, while the opinion of the court is contained in the body of the
decision that serves as a guide or enlightenment to determine the ratio decidendi of the decision.
112
1. Judgment without trial

Q: Can civil and criminal cases be adjudicated without trial? Explain? (1996 Bar Question)
Answer:
Civil cases maybe adjudicated without trial, such as in the following rules:
a)
Summary Judgment.
b)
Judgment on the Pleadings.
c)
Summary procedure.
d)
Sec. 3 of Rule 17.
Criminal cases as a rule may not be adjudicated without trial. Some exceptions are the following:
a)
Plea of guilty.
b)
Motion to quash on the ground of double jeopardy or extinction of criminal action

or liability.
c)
Motion to dismiss on the ground of violation of the right to a speedy trial.
2. Judgment on the pleadings

a.
What are the grounds for judgment on the pleadings? (2%)
b.
A's Answer admits the material allegations of Bs Complaint. May the court motu
proprio render judgment on the pleadings? Explain. (2%)
c.
A brought an action against her husband B for annulment of their marriage on the
ground of psychological incapacity. B Filed his Answer to the Complaint admitting all the
allegations therein contained. May A move for judgment on the pleadings? Explain. (2%)
SUGGESTED ANSWER:
a.
The grounds for judgment on the pleadings .are where an answer fails to tender an issue, or
otherwise admits the material allegations of the adverse partys pleading. (Sec. 1, Rule 34 of the
1997 Rules of Civil Procedure).
b.
No, a motion must be filed by the adverse party. (Sec. 1, Rule 34 of the 1997 Rules) The
court cannot motu proprio render judgment on the pleadings.
c.
No, because even if Bs answer to As complaint for annulment of their marriage admits all
the allegations therein contained, the material facts alleged in the complaint must always be
proved. (Sec. 1 of Rule 34.)
ANOTHER ANSWER:
113
c.
No. The court shall order the prosecutor to investigate whether or not a collusion
between the parties exists, and if there is no collusion, to intervene for the State in order to see to it
that the evidence submitted is not fabricated. (Sec. 3[E], Rule 9 of the 1997 Rules) Evidence must
have to be presented in accordance with the requirements set down by the Supreme Court in Republic vs. Court of Appeals and Molina (268 SCRA 198.)
Q: A brought an action for unlawful detainer against B in the Municipal Trial Court. B filed a
motion to dismiss on the ground of lack of cause of action for failure to first refer the dispute
to the Barangay Lupon. Acting on B's motion, the case was dismissed. A files a petition for
certiorari with the Regional Trial court assailing the Municipal Trial Courts dismissal order
on the ground that Bs motion to dismiss is a prohibited motion under the Revised Rules on
Summary Procedure.
As motion for summary Judgment was granted by the Regional Trial Court but reversed by
the Court of Appeals on the ground that A made no effort to adduce testimonial evidence in
addition to his affidavits to prove absence of any genuine issue as to any material fact.
Is the decision of the Court of Appeals correct? Explain.
Answer:
No. because testimonial evidence is not required to prove the absence of any genuine
issue as to any material fact. This is shown by the pleadings, depositions and admissions together
with the affidavits. (Sec. 3 of Rule 34)
Q: After joinder of issues, the plaintiff moved for partial summary judgment, specifically on
two of the five causes of action asserted in the complaint. Despite opposition by the
defendant who contended that the remedy of summary of judgment was not available
because there were genuine issues of fact which could not justifiably be resolved by
affidavits and counter-affidavits, the court rendered a partial summary of judgment as
prayed for. The defendant moved for reconsideration ten days after notice of the decision,
but the motion was denied. In the same order of denial, the court set for pre-trial conference
the three other causes of action and the defendants counterclaims.
Can the defendant appeal the partial summary judgment without awaiting the judgment in
the three remaining causes of action? If he can, when? If he cannot, what is his remedy?
Explain fully. (1987 Bar Question)
Answer:
The partial summary judgment is final and appealable without awaiting the judgment in the
three remaining causes of action, if the following requisites are present:
(1)
The two causes of action are separate and independent causes of action and the defendants
counterclaim does not arise out of the transaction or occurrence which is the subject matter of said
causes of action. In such case, judgment may be rendered pursuant to the rule of judgments at
various stages (Sec. 5 of Rule 36).
(2)
The affidavits, depositions and admissions submitted by the plaintiff show that, except as to
the amount of damages, there is no genuine issue as to any material fact and the plaintiff is entitled
to a judgment as a matter of law (Sec. 3 of Rule 34).
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The defendant may appeal within the remaining period or six days from notice of the
decision, since nine days had elapsed when he moved for reconsideration ten days after notice
thereof.
Another Alternative Answer:
The partial summary judgment is interlocutory and hence not immediately appealable, if
the three other causes of action are related to the two causes of action subject of the partial
summary judgment and the defendants counter claim arises out of the transaction or occurrence
which is the subject matter of said two causes of action. In such case, the partial summary judgment
does not fully adjudicate the case and a trial is necessary. (Sec. 4 of Rule 34) Moreover, there may
be genuine issue of fact that remain to be tried. (Guevarra vs. Court of Appeals, 124 SCRA 297).
The defendant may wait for the final judgment to be rendered on all the causes of action
and the counterclaim and appeal therefrom within fifteen days from notice thereof. In the event the
court orders execution of its partial summary judgment, the defendant may file a petition for
certiorari to set aside said order.
3. Summary judgments
a. For the claimant
Q: Modesto sued Ernesto for a sum of money, claiming that the latter owed him PI-million,
evidenced by a promissory note, quoted and attached to the complaint. In his answer with
counterclaim, Ernesto alleged that Modesto coerced him into signing the promissory note,
but that it is Modesto who really owes him PI.5-million. Modesto filed an answer to Ernestos
counterclaim admitting that he owed Ernesto, but only in the amount of PO.5-million. At the
pretrial, Modesto marked and identified Ernestos promissory note. He also marked and
identified receipts covering payments he made to Ernesto, to the extent of PO.5-million,
which Ernesto did not dispute. After pre-trial, Modesto filed a motion for judgment on the
pleadings, while Ernesto filed a motion for summary judgment on his counterclaim. Resolve
the two motions with reasons. (5%) (2009 Bar Question)
SUGGESTED ANSWER:
Modestos motion for judgment on the pleadings should be denied. While it is true that
under the actionable document rule, Ernestos failure to deny under oath the promissory note in his
answer amounted to an implied admission of its genuineness and due execution, his allegation in
his answer that he was coerced into signing the promissory note tendered an issue which should be
tried. The issue of coercion is not inconsistent with the due execution and genuineness of the
instrument. Thus, Ernestos failure to deny the genuineness of the promissory note cannot be
considered a waiver to raise the issue that he was coerced in signing the same. Said claim of
coercion may also be proved as an exception to the Parol Evidence Rule.
On the other hand, Ernestos motion for summary judgment may be granted. Modestos
answer to Ernestos counterclaim that he owed the latter a sum less than what was claimed
amounted to an admission of a material fact and if the amount thereof could summarily be proved
by affidavits, deposition, etc., without the need of going to trial, then no genuine issue of fact exists.
ALTERNATIVE ANSWER:
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Modestos motion for judgment on the pleadings should be denied because there is an issue
of fact. While Ernesto did not specifically deny under oath the promissory note attached to
Modestos complaint as an actionable document, such non-denial will not bar Ernestos evidence
that Modesto coerced him into signing the promissory note. Lack of consideration, as a defense,
does not relate to the genuineness and due execution of the promissory note.
Likewise, Ernestos motion for summary judgment should be denied because there is an
issue of fact the alleged coercion raise cf by Ernesto which he has yet to prove in a trial on its
merits. It is axiomatic that summary judgment is not proper or valid when there is an issue of fact
remaining which requires a hearing. And this is so with respect to the coercion alleged by Ernesto
as his defense, since coercion is not capable of being established by documentary evidence.
b. For the defendant
c. When the case not fully adjudicated
Q: After defendant has served and filed his answer to plaintiff s complaint for damages
before the proper Regional Trial Court, plaintiff served and filed a motion (with supporting
affidavits) for a summary judgment in his favor upon all of his claims. Defendant served and
filed his opposition (with supporting affidavits) to the motion. After due hearing, the court
issued an order (1) stating that the court has found no genuine issue as to any material fact
and thus concluded that plaintiff is entitled to judgment in his favor as a matter of law except
as to the amount of damages recoverable, and (2) accordingly ordering that plaintiff shall
have judgment summarily against defendant for such amount as may be found due plaintiff
for damages, to be ascertained by trial on October 7, 2004, at 8:30 oclock in the morning.
May defendant properly take an appeal from said order? Or, may defendant properly
challenge said order thru a special civil action for certiorari? Reason. (5%) (2004 Bar
Question)
SUGGESTEDANSWER:
No, plaintiff may not properly take an appeal from said order because it is an interlocutory
order, not a final and appealable order (Sec. 4 of Rule 35). It does not dispose of the action or
proceeding (Sec. I of Rule 39). Partial summary judgments are interlocutory. There is still
something to be done, which is the trial for the adjudication of damages (Province ofPangasinan
v. Court of Appeals, 220 SCRA 726 [1993]; Guevarra v. Court of Appeals, 209 Phil. 241
[1983d, but the defendant may properly challenge said order thru a special civil action for
certiorari. (Sec. 1 [c] and last par. of Rule 41)
Q: After joinder of issues, the plaintiff moved for partial summary judgment, specifically on
two of the five causes of action asserted in the complaint. Despite opposition by the
defendant who contended that the remedy of summary of judgment was not available
because there were genuine issues of fact which could not justifiably be resolved by
affidavits and counter-affidavits, the court rendered a partial summary of judgment as
prayed for. The defendant moved for reconsideration ten days after notice of the decision,
but the motion was denied. In the same order of denial, the court set for pre-trial conference
the three other causes of action and the defendants counterclaims.
Can the defendant appeal the partial summary judgment without awaiting the judgment in
the three remaining causes of action? If he can, when? If he cannot, what is his remedy?
Explain fully. (1988 Bar Question)
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Answer:
The partial summary judgment is final and appealable without awaiting the judgment in the
three remaining causes of action, if the following requisites are present:
(3)
The two causes of action are separate and independent causes of action and the defendants
counterclaim does not arise out of the transaction or occurrence which is the subject matter of said
causes of action. In such case, judgment may be rendered pursuant to the rule of judgments at
various stages (Sec. 5 of Rule 36).
(4)
The affidavits, depositions and admissions submitted by the plaintiff show that, except as to
the amount of damages, there is no genuine issue as to any material fact and the plaintiff is entitled
to a judgment as a matter of law (Sec. 3 of Rule 34).
The defendant may appeal within the remaining period or six days from notice of the
decision, since nine days had elapsed when he moved for reconsideration ten days after notice
thereof.
The partial summary judgment is interlocutory and hence not immediately appealable, if
the three other causes of action are related to the two causes of action subject of the partial
summary judgment and the defendants counter claim arises out of the transaction or occurrence
which is the subject matter of said two causes of action. In such case, the partial summary judgment
does not fully adjudicate the case and a trial is necessary. (Sec. 4 of Rule 35) Moreover, there may
be genuine issue of fact that remain to be tried. (Guevarra vs. Court of Appeals, 124 SCRA 297).
The defendant may wait for the final judgment to be rendered on all the causes of action
and the counterclaim and appeal therefrom within fifteen days from notice thereof. In the event the
court orders execution of its partial summary judgment, the defendant may file a petition for
certiorari to set aside said order.
4. Judgment on the pleadings versus summary judgments
Q: What do you understand by a Summary judgment? How is it distinguished from &
Judgment on the Pleadings? (1989 Bar Question)
Answer:
A summary judgment is one rendered by a Court without a trial on motion of either a
claimant or a defending party, with at least ten (10) days notice before the time specified for the
hearing, when the pleadings, supporting affidavits made on personal knowledge which are not
rebutted by opposing affidavits, depositions or admissions, show that, except as to the amount of
damages, there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.
It is distinguished from a judgment on the pleadings in that the latter is based on the
pleadings alone. A judgment on the pleadings may be rendered when the answer to the complaint,
counterclaim, cross-claim or third-party complaint fails to tender an issue or otherwise admits the
material allegations of the adverse partys pleading. (Rules 19 and 34).
5. Rendition of judgments and final orders
117
Q: After plaintiff in an ordinary civil action before the ZZ Regional Trial Court has completed
presentation of his evidence, defendant without prior leave of court moved for dismissal of
plaintiff s complaint for insufficiency of plaintiff s evidence. After due hearing of the motion
and the opposition thereto, the court issued an order, reading as follows: The Court hereby
grants defendants motion to dismiss and accordingly orders the dismissal of plaintiff s
complaint, with the costs taxed against him. It is so ordered."
Is the order of dismissal valid? May plaintiff properly take an appeal? Reason. (5%) (2004
Bar Question)
SUGGESTED ANSWER:
The order or decision is void because it does not state findings of fact and of law, as
required by Sec. 14, Article VIII of the Constitution and Sec. 1, Rule 36 of the Rules of Court. Being
void, appeal is not available. The proper remedy is certiorari under Rule 65.
ANOTHER ANSWER:
Either certiorari or ordinary appeal may be resorted to on the ground that the judgment is
void. Appeal, in fact, may be the more expedient remedy.
ALTERNATIVE ANSWER:
Yes. The order of dismissal for insufficiency of the plaintiffs evidence is valid upon
defendants motion to dismiss even without prior leave of court. (Sec. 1 of Rule 33). Yes, plaintiff
may properly take an appeal because the dismissal of the complaint is a final and appealable order.
However, if the order of dismissal is reversed on appeal, the plaintiff is deemed to have waived his
right to present evidence. (Id.)
6. Entry of judgment and final order
Q: AB mortgaged his property to CD. AB failed to pay his obligation and CD filed an action for
foreclosure of mortgage. After trial, the court issued an Order granting CDs prayer for
foreclosure of mortgage and ordering AB to pay CD the full amount of the mortgage debt
Including Interest and other charges not later than 120 days from date of receipt of the
Order. AB received the Order on August 10, 1999. No other proceeding took place thereafter.
On December 20, 1999, AB tendered the full amount adjudged by the court to CD but the
latter refused to accept it on the ground that the amount was tendered beyond the 120-day
period granted by the court. AB filed a motion in the same court praying that CD be directed
to receive the amount tendered by him on the ground that the Order does not comply with
the provisions of Section 2, Rule 68 of the Rules of Court which gives AB 120 days from entry
of judgment, and not from date of receipt of the Order. The court denied his motion on the
ground that the Order had already become final and can no longer be amended to conform
with Section 2, Rule 68. Aggrieved, AB files a petition for certiorari against the Court and CD.
Will the petition for certiorari prosper? Explain. (5%) (2000 Bar Question)
SUGGESTED ANSWER:
Yes. The court erred in issuing an Order granting CDs prayer for foreclosure of mortgage and
ordering AB to pay CD the full amount of the mortgage debt including interest and other charges
not later than 120 days from receipt of the Order. The court should have rendered a judgment
118
which is appealable. Since no appeal was taken, the judgment became final on August 25, 1999,
which is the date of entry of judgment. (Sec. 2, Rule 36, 1997 Rules of Civil Procedure) Hence, AB
had up to December 24, 1999 within which to pay the amount due. (Sec 2, Rule 68, 1997 Rules of
Civil Procedure) The court gravely abused its discretion amounting to lack or excess of jurisdiction
in denying ABs motion praying that CD be directed to receive the amount tendered.
P. Post-judgment remedies
1. Motion for new trial or reconsideration
2. Appeals in general
a. Judgments and final orders subject to appeal
Q: A decision adverse to defendant was rendered by the trial court in an action for recovery
of possession of a piece of land. Defendant wanted to appeal the decision but his lawyer
begged off from rendering further professional services. Within the period of appeal,
however, defendant came to know a man who introduced himself as Atty. Manuel Palma and
volunteered to handle his case.
Thereafter, defendant engaged the services of Atty. Palma" and paid him the professional
fee for the handling of his appeal. Immediately, Atty. Palma" filed a notice of appeal. In due
course, the Court of Appeals sent a notice to Atty. Palma" giving him forty-five days within
which to f e the appellants brief for defendant. However, the 45-aay period expired without
the appellants brief being filed.
Directed to show cause why the appeal should not be dismissed for failure to file the
appellants brief within the reglementary period, Atty. Palma" took no action. Consequently,
the Court of Appeals dismissed defendant s appeal.
Only after the Court of Appeals resolution dismissing the appeal had already become final
and executory and defendant learns of such dismissal.
Subsequent investigation made by a friend of defendant disclosed that Atty. Palma is not a
lawyer. Accordingly defendant asked the Court*of Appeals to nullify its resolution
dismissing his appeal. He asserted that his representation by a fake lawyer amounted to
deprivation of the right to appeal and, hence, a denial of due process.
On the other hand, the adverse party (plaintiff in the reconveyance suit) contended that the
resolution dismissing the appeal can no longer be set aside as it had long become final and
executory, and that defendant had lost his right appeal due to the negligence of his lawyer
(referring toAtty. Palma) for which he must suffer the consequence.
Should defendants plea for nullification of the dismissal of the appeal be granted?
Why?(1993 Bar Question)
Answer:
Yes, because defendant had not been accorded due process of law when he lost his right to
appeal due to the actions of Atty. Palma" who was not a lawyer. While a client is generally bound
by the action of his counsel, even by the attorneys mistake or negligence, this rule will not apply
where the lawyer turned out to be fake. [Telan vs. Court of Appeals, 202 SCRA 534)
b. Modes of appeal
119
i. Ordinary appeal
ii. Petition for review
iii. Petition for review on certiorari
Q: Explain each mode of certiorari: (2006 Bar Question)
a.
As a mode of appeal from the Regional Trial Court or the Court of Appeals to the
Supreme Court. 2.5%
SUGGESTED ANSWER:
A petition for review on certiorari under Rule 45 of the 1997 Revised Rules on Civil
Procedure is a mode of appeal on pure questions law from a judgment or final order or resolution of
the Court of Appeals or the Regional Court to the Supreme Court.
Q: The defendant was declared in default in the RTC for his failure to file an answer to a
complaint for a sum of money. On the basis of the plaintiffs ex parte presentation of
evidence, judgment by default was rendered against the defendant. The default judgment
was served on the defendant on October 1, 2001. On October 10, 2001, he filed a verified
motion to lift the order of default and to set aside the judgment. In his motion, the defendant
alleged that, immediately upon receipt of the summons, he saw the plaintiff and confronted
him with his receipt evidencing his payment and that the plaintiff assured him that he would
instruct his lawyer to withdraw the complaint. The trial court denied the defendants motion
because it was not accompanied by an affidavit of merit. The defendant filed a special civil
action for certiorari under Rule 65 challenging the denial order.
A.
Is certiorari under Rule 65 the proper remedy? Why? (2%)
B.
Did the trial court abuse its discretion or act without or in excess of its jurisdiction in
denying the defendant's motion to lift the order of default and to set aside the default
judgment? Why? (3%) (2002 Bar Question)
SUGGESTED ANSWER:
A.
The petition for certiorari under Rule 65 filed by the defendant is the proper remedy
because appeal is not a plain, speedy and adequate remedy in the ordinary course of law in appeal,
the defendant in default can only question the decision in the light of the evidence of the plaintiff.
The defendant cannot invoke the receipt to prove payment of his obligation to the plaintiff.
ALTERNATIVE ANSWER:
A.
Under ordinary circumstances, the proper remedy of a party wrongly declared in default is
either to appeal from the judgment by default or to file a petition for relief from judgment [Jeo, Inc.
v. Court of Appeals, 251 SCRA3S1 (1995)].
SUGGESTED ANSWER:
B.
Yes, the trial court gravely abused its discretion or acted without or in excess of jurisdiction
in denying the defendants motion because it was not accompanied by a separate affidavit of merit,
in his verified motion to lift the order of default and to set aside the judgment, the defendant alleged
that immediately upon receipt of the summons, he saw the plaintiff and confronted him with his
120
receipt showing payment and that the plaintiff assured him that he would instruct his lawyer to
withdraw the complaint Since the good defense of the defendant was already incorporated in the
verified motion, there was no need for a separate affidavit of merit [Capuz v. Court of Appeals, 233
SCRA 471 (1994); Mago v. Court of Appeals, 303 SCRA 600 (1999)]
A.
What are the modes of appeal to the Supreme Court? (2%)
B.
xxx
SUGGESTED ANSWER:
A.
The modes of appeal to the Supreme Court are:
(a) appeal by certiorari on pure questions of law under Rule 45 through a petition
for review on certiorari; and
(b) ordinary appeal in criminal cases through a notice of appeal from convictions
imposing reclusion perpetua or life imprisonment or where a lesser penalty Is involved but
for offenses committed on the same occasion or which arose out of the same occurrence
that gave rise to the more serious offense. (Rule 122, sec. 3) Convictions imposing the
death penalty are elevated through automatic review.
Q: On 3 January 1991, the Mayon Corp. filed a complaint for foreclosure of real estate
mortgage against one of its sales agents. A, who was discovered to have incurred a shortage
in his accounts. The mortgage was executed to guarantee faithful compliance with his duties
and responsibilities as a sales agent. Impleaded in the complaint as co-defendants were As
co-mortgagors, B and C.
Acting on defendants' motion to dismiss, the court dismissed the complaint in an Order
dated 15 February 1991, a copy of which was received by Mayon Corp. on 18 February 1991.
On 15 March 1991, and definitely within a reasonable period from receipt of the dismissal
order, Mayon Corp. filed with the Supreme Court a special civil action for certiorari under
Rule 65 of the Rules of Court alleging therein that the trial court acted without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction in granting
the motion to dismiss. (1991 Bar Question)
(a)
Should the Supreme Court give due course to the petition?
Answer:
(a)
No, because the proper remedy was an appeal from the order of dismissal. The special civil
action of certiorari cannot take the place of a lost appeal. (Limpot v. CA, 170 SCRA 367)
(b)
Distinguish certiorari as a special civil action under Rule 65 from certiorari as a
mode of appeal under Rule 45 of the Rules of Court.
Answer:
(b)
Certiorari as a special civil action is within the jurisdiction of the Supreme Court, the
Court of Appeals and the. Regional Trial Courts, whereas certiorari as a mode of appeal is within the
jurisdiction only of the Supreme Court.
121
The grounds for certiorari under Rule 65 are lack or excess of jurisdiction or grave abuse of
discretion, whereas the grounds for certiorari under Rule 45 are errors of law.
The court or judge should be joined as indispensable party defendant in certiorari under
Sec. 5 of Rule 65, but need not be joined in certiorari under Rule 45. (MWSS v. CA, 143 SCRA 623;
Philippine Global Communications, Inc. v. Relova. 145 SCRA 385)
(c)
May a special civil action for certiorari prosper in case of a denial of a motion to
dismiss or a motion to quash? If so, in what instance or instances?
Answer:
(c)
Yes, if it can be shown that the trial court acted without or in excess of jurisdiction or with
grave abuse of discretion, since the order of denial is interlocutory and not immediately appealable.
(Manalo v. Mariano, 69 SCRA 800; Tacas v. Cariaso, 72 SCRA 171; Newsweek v. IAC, 142 SCRA 171)
Q: The defendant in a civil action received a note of the judgment of the Municipal Trial
Court on 10 December. (1991 Bar Question)
(a)
xxx
(b)
Can he validly move for extension-of the period for filing a motion for
reconsideration of the decision in view of the Christmas holidays?
Answer:
(b)
No. a motion for extension of time to file a motion for reconsideration is not allowed.
(Habaluyas Ent v. Japson 142 SCRA 208)
(c)
In this case, when will the appeal be deemed perfected?
Answer:
(c)
The appeal will be deemed perfected upon the expiration of the last day to appeal by any
party. (Sec. 23 of Interim Rules)
Q: In his answer to the complaint, Mario Reyes alleged that he does not owe Norma Alajar
any sum of money, and that he executed the promissory note only to enable Alajar to show
the same to her husband to explain the disappearance of the amount from the conjugal funds
as Norma Alajar lost the same in the casino. The answer is not verified. At the trial, the
lawyer of Norma Alajar objected to the testimony of Mario Reyes, as to his accommodation
story because, as the answer is not verified, he is deemed to have admitted the genuineness
and due execution of the promissory note.
xxx
While the trial was ongoing, the lawyer of Mario Reyes discovered that there was improper
service of summons, the summons having been sent by registered mail. He filed a motion to
dismiss on the ground that the court had not acquired jurisdiction over the person of Mario
Reyes.
xxx
122
(a)
Suppose the motion to dismiss in the preceding problem is granted, what is the
remedy of Norma Alajar?
If the motion to dismiss is denied, what is the recourse of Mario Reyes?-
(b)
Explain your answers. (1990 Bar Question)

Answer:
(a)
The remedy of Norma Alajar from the order of dismissal is an appeal by certiorari under
Rule 45 of the Rules of Court.

Another remedy is for Alajar to file a motion for reconsideration with a request to have another
summons served on Mario Reyes.
Answer:
(b)
The recourse of Mario Reyes from the order of denial is not an immediate appeal because
the order i$ interlocutory. However, since the issue raised is lack of Jurisdiction over his person, he
may file a petition for certiorari under Rule 65 of the Rules of Court. (Newsweek v. IAC, 142 SCRA
.171)

(a)
What are the contents of a petition for review by certiorari, under Rule 45 of the
Rules of Court, from a judgment of the Court of Appeals to the Supreme Court?
(b)
When must this petition for review under paragraph (a) hereof be filed? How does
this period differ from that required for filing the requisite petition in a special civil action
for certiorari?
(c)
State the three (3) grounds upon which the Supreme Court may dismiss the petition
under paragraph (a) hereinabove.
Answer:
(a)
The petition shall contain a concise statement of the matters involved, the assignment of
errors made in the court below, and the reasons relied on for the allowance of the petition, and it
should be accompanied with a true copy of the judgment sought to be reviewed, together with
twelve (12) copies of the record on appeal, if any, and of the petitioners brief as filed in the Court of
Appeals. A verified statement of the date when notice of judgment and denial of the motion for
reconsideration, if any, were received shall accompany the petition. (Sec. 2 of Rule 45)
(b)
Within fifteen (15) days from notice of judgment or of the denial of his motion for
reconsideration. (Sec. 1 of Rule 43)
There is no reglementary period for filing a petition for certiorari as a special civil action. Only a
reasonable period is required.
(c)
The three grounds are that the appeal is without merit, or is prosecuted manifestly for
123
delay, or that the questions raised are too unsubstantial to require consideration. (Sec. 3 of Rule 45)
c. Period of appeal
Q: The defendant in a civil action received a note of the judgment of the Municipal Trial
Court on 10 December. (1991 Bar Question)
(a)
What is his last day for appealing?
Answer:
(c)
Dec. 26, since the last day, Dec. 25 is a holiday.
Q: Defendant X received an adverse Decision of the Regional Trial Court in an ordinary civil
case on 02 January 2003. He filed a Notice of Appeal on 10 January 2003. On the other hand,
plaintiff A received the same Decision on 06 January 2003 and, on 19 January 2003, filed a
Motion for Reconsideration of the Decision. On 13 January 2003, defendant X filed a Motion
withdrawing his notice of appeal in order to file a Motion for New Trial which he attached.
On 20 January 2003, the court denied A's Motion for Reconsideration and Xs Motion to
Withdraw Notice of Appeal. Plaintiff A received the Order denying his Motion for
Reconsideration on 03 February 2003 and filed his Notice of Appeal on 05 February 2003.
The court denied due course to As Notice of Appeal on the ground that the period to appeal
had already lapsed.
(a)
Is the courts denial of Xs Motion to Withdraw Notice of Appeal proper?
(b)
Is the courts denial of due course to A's appeal correct? (2003 Bar Question)
SUGGESTED ANSWER:
(a)
No, the courts denial of Xs Motion to Withdraw Notice of Appeal is not proper, because the
period of appeal of X has not yet expired. From January 2, 2003 when X received a copy of the
adverse decision up to January 13, 2003 when he filed his withdrawal of appeal and Motion for New
Trial, only ten (10) days had elapsed and he had fifteen (15) days to do so.
(b)
No, the courts denial of due course to As appeal is not correct because the appeal was
taken on time. From January 6, 2003 when A received a copy of the decision up to January 19, 2003
when he filed a Motion for Reconsideration, only twelve (12) days had elapsed. Consequently, he
had three (3) days from receipt on February 3, 2003 of the Order denying his Motion for
Reconsideration within which to appeal. He filed his notice of appeal on February 5, 2003, or only
two (2) days later.
ALTERNATIVE ANSWER:
(b)
Since A's Motion for Reconsideration was filed on January 19, 2003 and it was denied on
January 20, 2003, it was clearly not set for hearing with at least three days notice. Therefore, the
motion was pro forma and did not interrupt the period of appeal which expired on January 21,
2003 or fifteen (15) days after notice of the decision on January 6, 2003.
d. Perfection of appeal
124

a.
When is an appeal from the Regional Trial Court to the Court of Appeals deemed
perfected? (2%)
b.
XXX received a copy of the RTC decision on June 9, 1999; YYY received it on the next
day, June 10, 1999. XXX filed a Notice of Appeal on June 15, 1999. The parties entered into a
compromise on June 16, 1999. On June 13, 1999, YYY, who did not appeal, filed with the RTC
a/notion for approval of the Compromise Agreement. XXX changed his mind and opposed
the motion on the ground that the RTC has no more jurisdiction. Rule on the motion
assuming that the records have not yet been forwarded to the CA. (2%)
SUGGESTED ANSWER:
a. An appeal from the Regional Trial Court to the Court of Appeals is deemed perfected as to
the appellant upon the filing of a notice of appeal in the Regional Trial Court in due time .or
within the reglementary period of appeal. An appeal by record on appeal is deemed perfected as to the appellant with respect to the subject matter thereof upon the approval of
the record on appeal filed in due time. (Sec. 9, Rule 41 of the 1997 Rules)
b. The contention of XXX that the RTC has no more jurisdiction over the case is not correct
because at the time that the motion to approve the compromise had been filed, the period of
appeal of YYY had not yet expired. Besides, even if that period had already expired, the
records of the case had not yet been forwarded to the Court of Appeals. The rules provide
that in appeals by notice of appeal, the court loses jurisdiction over the case upon the
perfection of the appeals filed in due time and the expiration of the time to appeal of the
other parties. (Sec. 9, third par. Rule 41 of the 1997 Rules) The rules also provide that prior
to the transmittal of the record, the court may, among others, approve compromises. (Sec. 9,
fifth par., Rule 41 of the 1997 Rules)
(Note: June 13, the date of the filing of the motion for approval of the Compromise
Agreement, appears to be a clerical error.)
Q: By sheer coincidence, Atty. Lopez was on the same day, June 30, 1991, served with adverse
decisions of the Court of Appeals and the Regional Trial Court. In each case, he filed a motion
for reconsideration simultaneously on July 10. 1991. He received notices of the denial of his
two motions for reconsideration on August 15, 1991.
If Atty. Lopez decides to appeal in each of the two cases: (1992 Bar Question)
(a)
What mode of appeal should he pursue in each case?
Suggested Answer:
(1)
From the Court of Appeals to Supreme Court - appeal by certiorari under Rule 45.
(2)
From the Regional Trial Court to Court of Appeals - ordinary appeal on questions of fact
and law.
(3)
only.
(b)
From the Regional Trial Court to Supreme Court - appeal by certiorari on questions of law
How would he perfect each appeal?

125
Suggested Answer:
(1)
From Court of Appeals to Supreme Court , by filing a petition for review on certiorari with
the Supreme Court and serving a copy on the Court of Appeals and the adverse party.
(2)
From Regional Trial Court to Court of Appeals, by filing a notice of appeal with Regional
Trial Court and serving a copy on the adverse party.
(3)
From Regional Trial Court to Supreme Court, by filing a petition for review on certiorari
with Supreme. Court and serving a copy on the lower court and the adverse party.
(c)
Within what time should each appeal be perfected?
Suggested Answer:
(1)
From Court of Appeals to Supreme Court, on or before August 30, 1991, or fifteen days from
notice of the denial of the motion for reconsideration. (Sec. 1 of Rule 45)
(2)
From Regional Trial Court to Court of Appeals, on or before August 21, 1991, or the
remaining period of 6 days counted from notice of denial, since from June 30 to July 10, nine days
had elapsed. (De Las Alas vs. Court of Appeals, 83 SCRA 200)
(3)
From Regional Trial Court to Supreme Court, on or before August 30. 1991, as in appeal
from Court of Appeals to Supreme Court. (RA 5440)
Q: In the same case, the trial court rendered judgment against Mario Reyes which was
received by defendants lawyer on September 3, 1990 and by plaintiffs lawyer on September
5, 1990. Mario Reyes filed his notice of appeal on September 18, 1990. On September 19,
1990, Norma Alajar filed a motion for execution pending appeal alleging that the appeal is
dilatory and that Mario Reyes has no valid defenses; besides, Norma Alajar is already
destitute and needs the money very badly. Mario Reyes opposed the motion for execution
pending appeal on the ground that since his appeal had been perfected on September 18,
1990, the trial court can no longer act on the said motion.
Decide with reasons. (1990 Bar Question)
Answer:
The motion for execution pending appeal filed by Norma Alajar was timely because it was
filed before the perfection of the appeal of Mario Reyes. The appeal was perfected upon the
expiration of the last day to appeal by any party. (Sec. 23 of Interim Rules). Hence, the appeal was
perfected on September 20, 1990, which was the last day to appeal by Norma Alajar because her
lawyer received copy of the decision on September 5, 1990. (Balgado v. IAC, 147 SCRA 258)
Q: In a decision rendered by the Regional Trial Court, plaintiffs Jose, Benigno and Nicolas
were ordered to surrender the possession of the fishpond subject matter of the litigation in
favor of defendant Yolando. Counsel for the plaintiffs received the decision on July 23, 1987,
and appealed from it on the following day, July 24, 1987. Counsel for the defendant received
the decision earlier, on July 20, 1987, and filed a motion for execution pending appeal on
July 25, 1987, which the trial court granted.
Plaintiffs went to the Court of Appeals questioning the order granting the execution of
judgment. The appellate court nullified the order on the ground that the motion for
126
execution pending appeal was filed on July 25, 1987, or after the appeal had already been
perfected. Is the decision of the Court of Appeals proper? Explain. (1989 Bar Question)
Answer:
No. The time within which the prevailing party may file a motion for execution pending
appeal is before the perfection of the appeal. An appeal is deemed perfected upon the expiration of
the last day to appeal by any party. The appeal of the plaintiffs, which was filed on July 24, 1987,
was perfected only on August 8, 1987, which was the last day to appeal by the defendant. Hence, the
motion for execution pending appeal filed on July 25, 1987 was filed on time (Sec. 23 of Interim
Rules; Delgado vs. IAC, 147 SCRA 258).
e. Appeal from judgments or final orders of the MTC
Q: On July 15,2009, Atty. Manananggol was served copies of numerous unfavorable
judgments and orders. On July 29, 2009, he filed motions for reconsideration which were
denied. He received the notices of denial of the motions for reconsideration on October
2,2009, a Friday. He immediately informed his clients who, in turn, uniformly instructed him
to appeal. How, when and where should he pursue the appropriate remedy for each of the
following: (10%)
[a]
Judgment of a Municipal Trial Court (MTC) pursuant to its delegated jurisdiction
dismissing his clients application for land registration? (2009 Bar Question)
SUGGESTED ANSWER:
By notice of appeal, within 15 days from notice of judgment or final order appealed from, to
the Court of Appeals;
Q: State the steps for bringing up to the Supreme Court: (1994 Bar Question)
1)
a decision of the Municipal Trial Court of Manila in an ejectment case.
Answer:
1)
To bring up a decision of the Municipal Trial Court of Manila in an ejectment case to the
Supreme Court, it must first be appealed to the Regional Trial Court by notice of appeal, and the
decision of the Regional Trial Court may be appealed to the Court of Appeals through a petition for
review* after which the decision of the Court of Appeals may be elevated to the Supreme Court
through a petition for review on certiorari The decision of the Regional Trial Court may be appealed
directly to the Supreme Court on questions of law only through a petition for review on certiorari
f. Appeal from judgments or final orders of the RTC

[a]
xxx
[b]
xxx
[c]
xxx
[d]
xxx
127
[e]
The filing of a motion for the reconsideration of the trial courts decision results in
the abandonment of a perfected appeal. (2009 Bar Question)
SUGGESTED ANSWER:
FALSE. The trial court has lost jurisdiction after perfection of the appeal and so it can no
longer entertain a motion for reconsideration.
ALTERNATIVE ANSWER:
FALSE, because the appeal may be perfected as to one party but not yet perfected as to the
other party who may still file a motion for reconsideration without abandonment of his right of
appeal even though the appeal of the case is perfected already as to the other party.
Q: Distinguish the two (2) modes of appeal from the judgment of the Regional Trial Court to
the Court of Appeals. (3%) (2009 Bar Question)
SUGGESTED ANSWER:
In cases decided by the Regional Trial Courts in the exercise of their original
jurisdiction, appeals to the Court of Appeals shall be ordinary appeal by filing written notice of
appeal indicating the parties to the appeal; specifying the judgment/final order or part thereof
appealed from; specifying the court to which the appeal is being taken; and stating the material
dates showing the timeliness of the appeal. The notice of appeal shall be filed with the RTC which
rendered the judgment appealed from and copy thereof shall be served upon the adverse party
within 15 days from notice of judgment or final order appealed from. But if the case admits of
multiple appeals or is a special proceeding, a record on appeal is required aside from the written
notice of appeal to perfect the appeal, in which case the period for appeal and notice upon the
adverse party is not only 15 days but 30 days from notice of judgment or final order appealed from.
The full amount of the appellate court docket fee and other lawful fees required must also be paid
within the period for taking an appeal, to the clerk of the court which rendered the judgment or
final order appealed from (Secs. 4 and 5, Rule 41, Rules of Court). The periods of 15 or 30 days
above-stated are non-extendible.
In cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction,
appeal to the Court of Appeals shall be by filing a verified petition for review with the Court of
Appeals and furnishing the RTC and the adverse party with copy thereof, within 15 days from
notice of judgment or final order appealed from. Within the same period for appeal, the docket fee
and other lawful fees required with the deposit for cost should be paid. The 15-day period maybe
extended for 15 days and another 15 days for compelling reasons.
1)
xxx
2)
xxx
3)
a decision of the Regional Trial Court, Quezon City, in a case originally filed with said
court and where the appeal involves a pure question of law.
Answer:
1)
xxx
128
2)
xxx
3)
To bring up to the Supreme Court a decision of the Regional Trial Court. Quezon City, in a
case originally filed with said court and where the appeal involves a pure question of law, a petition
for review on certiorari should be filed. (Murillo v. Consul: SC Circular No. 2-90).
following: (10%)
[a]
xxx
[b]
Judgment of the Regional Trial Court (RTC) denying his clients petition for a Writ of
Habeas Data? (2009 Bar Question)
SUGGESTED ANSWER:
By verified petition for review on certiorari under Rule 45, with the modification that
appellant may raise questions of fact or law or both, within 5 work days from date of notice of the
judgment or final order to the Supreme Court (Sec. 19, A.M. No. Q8-1-16SC);
[c]
Order of a Family Court denying his clients petition for Habeas Corpus in relation to
custody of a minor child? (2009 Bar Question)
SUGGESTED ANSWER:
By notice of appeal, within 48 hours from notice of judgment or final order to the Court of
Appeals (Sec. 14, RA No. 8369 in relation to Sec 3, Rule 41, Rules of Court).
[d] Order of the RTC denying his clients Petition for Certiorari questioning the Metropolitan
Trial Courts (MeTCs) denial of a motion to suspend criminal proceedings? (2009 Bar
Question)
SUGGESTED ANSWER:
By notice of appeal, within 15 days from notice of the final Order, to the Court of Appeals
(Magestrado v. People, 527SCRA 125 [2007J\.
Q: After defendant has served and filed his answer to plaintiff s complaint for damages
before the proper Regional Trial Court, plaintiff served and filed a motion (with supporting
affidavits) for a summary judgment in his favor upon all of his claims. Defendant served and
filed his opposition (with supporting affidavits) to the motion. After due hearing, the court
issued an order (1) stating that the court has found no genuine issue as to any material fact
and thus concluded that plaintiff is entitled to judgment in his favor as a matter of law except
as to the amount of damages recoverable, and (2) accordingly ordering that plaintiff shall
have judgment summarily against defendant for such amount as may be found due plaintiff
for damages, to be ascertained by trial on October 7, 2004, at 8:30 oclock in the morning.
129
May defendant properly take an appeal from said order? Or, may defendant properly
challenge said order thru a special civil action for certiorari? Reason. (5%) (2004 Bar
Question)
SUGGESTEDANSWER:
No, plaintiff may not properly take an appeal from said order because it is an interlocutory
order, not a final and appealable order (Sec. 4 of Rule 35). It does not dispose of the action or
proceeding (Sec. I of Rule 39). Partial summary judgments are interlocutory. There is still
something to be done, which is the trial for the adjudication of damages (Province ofPangasinan
v. Court of Appeals, 220 SCRA 726 [1993]; Guevarra v. Court of Appeals, 209 Phil. 241
[1983d, but the defendant may properly challenge said order thru a special civil action for
certiorari. (Sec. 1 [c] and last par. of Rule 41)
Q: The Regional Trial Court (RTC) affirmed the appealed decision of the Municipal Trial
Court (MTC). You are the counsel of the defeated party and he tells you to appeal the RTCs
decision.
1.
What mode of appeal will you adopt? [2%]
2.
Within what time and in what court should you file your appeal? [3%] (1998 Bar
Question)
SUGGESTED ANSWER:
1.
The mode of appeal is by petition for review under Rule 42. 1997 Rules of Civil Procedure.
2.
The period of appeal is within fifteen (15) days from notice of the decision subject of the
appeal or of the denial of a motion for new trial or reconsideration filed in due time. The appeal
shall be filed la the Court of Appeals. (See. 1, Hole 42, 1997 Rules of Civil Procedure.)
Q: If the accused is meted the penalty of reclusion perpetua by the Regional Trial Court, what
should he do to have his case reviewed by the proper appellate court? (19932 Bar Question)
Suggested Answer:
If the accused is meted the penalty of reclusion perpetua by the Regional Trial Court, he
should file a notice of appeal to the Supreme Court which has exclusive appellate jurisdiction. (Sec.
5, Art. VIII, Constitution: Sec. 3(c) of Rule 122)
Q: Suppose that instead of filing a motion for reconsideration with the RTC, Juan Santos filed
a notice of appeal with the RTC stating that he is appealing to the Court of Appeals on the
ground that the judgment is contrary to the law and the facts of the case.
As lawyer for Maria Cruz, on what procedural ground will you oppose the appeal? Explain
your answer. (1990 Bar Question)
Answer:
I would oppose the appeal on the ground that the proper procedure is the filing of a petition
for review with the Court of Appeals. (Sec. 22 of BP 129). The filing of a notice of appeal is proper if
the case was originally filed in the Regional Trial Court.
130

a)
The Regional Trial Court of Manila rendered a judgment for the plaintiff Antonio
Santos and against defendant Benjamin Carandang. Defendant Benjamin Carandang
received the decision on July 15, 1988. On July 25, 1988, Benjamin filed a Motion for
Extension of Time for ten (10) days from July 30, 1988, within which to file a motion for
reconsideration. The Court failed to act on the motion for extension but Benjamin filed on
August 5, 1988 his Motion For Reconsideration within the ten-day extension prayed for.
Antonio Santos, on August 15, 1988, filed a Motion for the Issuance of a Writ of Execution
alleging that the judgment had already become final and executory.
Rule on the Motion with reasons.
b)
Capt. Basaya and twenty-four (24) sailors are the crew of F/b Carribbean, a fishing
boat chartered and operated since 1977 by Tuna, Inc. In 1985, Tuna, Inc. transferred its
operation to a sister corporation, Eastship Corporation.
On June 28,1986, Capt. Basaya and his crew informed Eastship that they would not sail the
ship unless their economic demands, which they had presented previously to Tuna, Inc.,
were granted.
Eastship on July 8,1986 filed with the National Labor Relations Commission in Cebu a
Petition to declare the strike by Capt. Basaya and his crew illegal. In turn, the crew filed on
August 8,1986 a complaint for unfair labor practice against Tuna, Inc. and Eastship.
On July 9, 1986, a day after the filing of the illegal strike complaint, Tuna, Inc. also sought the
remedy of Replevin before the Regional Trial Court praying that Capt. Basaya and his crew
be' ordered to deliver the possession of the vessel to it as their possession was in violation of
its rights.
Which Court or Tribunal has jurisdiction over the issue of possession of the vessel? Explain.
Answer:
(a)
Motion for execution is granted. A motion for extension of time within which to file a
motion for reconsideration is not allowed, except in the Supreme Court. (Habaluyas Enterprises,
Inc. vs. Japson, 142 SCRA 208). Hence, the decision become final and executory on July 30, 1988.
(b)
The Regional Trial Court has jurisdiction over the issue of possession of the vessel. The
replevin case is not involved in the labor dispute. The question of who has the better right of
possession is outside the competence of labor tribunals and within the jurisdiction of civil courts.
(Basaya, Jr. vs. Militante, Dec. 11,1987)
g. Appeal from judgments or final orders of the CA
Q: If the penalty of reclusion temporal is increased on appeal by the Court of Appeals to
reclusion perpetua, what should the accused do to have his case reviewed by the Supreme
Court? (1992 Bar Question)
Suggested Answer:
The accused need not do anything because the Court of Appeals should render judgment imposing
the penalty of reclusion perpetua refrain from entering judgment and certify the case to the
Supreme Court for review. (Sec. 13 of Rule 124; People vs. Daniel 86 SCRA 511). If the Court of
131
Appeals does not certify the case to the Supreme Court for review, the accused should invite the
attention of the Court of Appeals to its duty to do so.
h. Appeal from judgments or final orders of the CTA
following: (10%)
[a]
xxx
[b]
xxx
[c]
xxx
[d]
xxx
[e] Judgment of the First Division of the Court of Tax Appeals (CTA) affirming the RTC
decision convicting his client for violation of the National Internal Revenue Code? (2009 Bar
Question)
SUGGESTED ANSWER:
By petition for review filed with the Court of Tax Appeals (CTA) en banc, within 30 days
from receipt of the decision or ruling in question (Sec. 9[b], Rule 9, Rev. Rules of CTA).
Q: Mark filed with, the Bureau of Internal Revenue a complaint for refund of taxes paid, but it
was not acted upon. So, he filed a similar, complaint with the Court of Tax Appeals raffled to
one of its Divisions. Marks complaint was dismissed. Thus, he filed with the Court of Appeals
a petition for certiorari under Rule 65.
Does the Court of Appeals have jurisdiction over Marks petition? 2.5% (2006 Bar Question)
SUGGESTED ANSWER:
No. A decision of a Division of the Court of Tax Appeals (CTA) is appealable within 15 days
to the CTA en banc [Sec. 18, Rep. Act No. 9282, as amended]. On the other hand, a party adversely
affected by a decision or ruling of the CTA en banc may file with the Supreme Court a verified
petition for review on certiorari pursuant to Rule 45 of the 1997 Rules of Civil Procedure [Sec. 19,
Rep. Act No. 9282, as amended].
Rep. Act No. 9282 expanded the jurisdiction of the Court of Tax Appeals and elevated the
same to the level of a collegiate court equivalent to the rank of the Court of Appeals. Hence, the
Court of Appeals no longer has jurisdiction to review decisions of the Court of Tax Appeals en banc.
i. Review of final judgments or final orders of quasi-judicial agencies
1)
xxx
2)
a decision of the Board of Assessment Appeals of the Province of Rizal.

132
3)
xxx
Answer:
1)
xxx
2)
To bring up a decision of the Board of Assessment Appeals of the Province of Rizal to the
Supreme Court, it must first be brought to the Central Board of Assessment Appeals, after which the
decision of the CBAA may be brought to the Supreme Court In a special civil action for certiorari
3)
xxx
3. Relief from judgments, orders and other proceedings

a. Grounds for availing of the remedy
(a)
xxx
(b)
A defendant who has been declared in default can avail of a petition for relief from
the judgment subsequently rendered in the case. (3%) (2007 Bar Question)
SUGGESTED ANSWER:
FALSE. The remedy of petition for relief from judgment is available only when the judgment
or order in question is already final and executory, i.e., no longer appealable. As an extraordinary
remedy, a petition for relief from judgment may be availed only in exceptional cases where no other
remedy is available.
Q: May a judgment which has become final and executory still be questioned, attacked or set
aside? If so, how? If not, why not? Discuss fully. (1995 Bar Question)
Answer:
There are three ways by which a final and executory judgment may be attacked or set aside,
namely:
a)
By petition for relief from judgment under Rule 38 on the grounds of fraud, accident,
mistake or excusable negligence within sixty days from learning of the Judgment
and not more than six months from its entry;
b)
By direct action to annul or enjoin the enforcement of the judgment when the defect
is not apparent on its face or from the recitals contained in the Judgment;
c)
By direct action, such as certiorari, or by a collateral attack against the judgment

which is void on its face or when the nullity of the Judgment is apparent by virtue of
its own recitals. [Macabingkil vs. Peoples Homesite and Housing Corporation, 72
SCRA 326)
b. Time to file petition

Q: A money judgment against Ernesto Golem in favor of Geraldine Bolos was rendered by the
Regional Trial Court of Binan, Laguna. The decision was received by Atty. Jose Maco, counsel
for Golem, on March 4. 1990. Atty. Maco did not inform Golem about the judgment. On March
10, 1990, Atty. Maco migrated with his entire family to California, U.S.A. Entry of judgment
133
was made on March 20, 1990, Golem learned of the decision only on June 17, 1990 when the
court sheriff arrived at his residence to levy on his properties. You are consulted by Golem
on July 31, 1990.
Assuming Golem has a. meritorious case, what legal remedies may you avail of in order to
protect his interests? Explain your answer. (1990 BarQuestion)
Answer:
I will file a petition for relief from judgment with the Regional Trial Court of Binan, Laguna.
Such a petition should be filed within 60 days after the petitioner learns of the judgment and not
more than 6 months after its entry. (Sec. 3 of Rule 38). Since the entry of judgment was made on
March 20.1990, the period of 6 months had not yet expired on July 31, 1990 when I was consulted
by Golem.
While the period of 60 days is ordinarily counted from notice to the lawyer, this case may be
an exception because of the gross irresponsibility of Atty. Maco who did not inform Golem about the
judgment and migrated to California. Hence, the said period should be counted from July 17, 1990
when Golem actually learned of the Judgment. (PHHC v. Tiongco, 12 SCRA 471)
Inasmuch as a petition for relief from judgment is no longer available because of the lapse of
the period of 60 days counted from March 4, 1990 when the decision was received by Atty. Maco,
counsel for Golem, and notice to the lawyer is notice to the client (Olivares v. Leola, 97 Phil. 253),
the only available remedy is for Golem to file an action for damages and disbarment proceedings
against Atty. Maco (Sanchez v. Tupas, 158 SCRA 459).
c. Contents of petition
Q: Having obtained favorable judgment in his suit for a sum of money against Patricio,
Orencio sought the issuance of a writ of execution. When the writ was issued, the sheriff
levied upon a parcel of land that Patricio owns, and a date was set for the execution sale.
How may Patricio prevent the sale of the property on execution? (2%) (2009 Bar
Question)
[a]
SUGGESTED ANSWER:
Patricio may file a Petition for Relief with preliminary injunction (Rule 38), posting a bond
equivalent to the value of the property levied upon; or assail the levy as invalid if ground exists.
Patricio may also simply pay the amount required by the writ and the costs incurred therewith.
4. Annulment of judgments or final orders and resolutions
a. Grounds for annulment
Q: What are the grounds for the annulment of a Judgment of the Regional Trial Court (RTC)?
[2%] (1998 Bar Question)
SUGGESTED ANSWER:
The grounds for annulment of judgment of the Regional Trial Court are extrinsic fraud and
lack of jurisdiction. (Sec. 2, Rule 4.7, 1997 Rules of Civil Procedure.)
134
Answer:
namely:
a. By petition for relief from judgment under Rule 38 on the grounds of fraud, accident,
mistake or excusable negligence within sixty days from learning of the Judgment and not
more than six months from its entry;
b. By direct action to annul or enjoin the enforcement of the judgment when the defect is not
apparent on its face or from the recitals contained in the Judgment;
c. By direct action, such as certiorari, or by a collateral attack against the judgment which is
void on its face or when the nullity of the Judgment is apparent by virtue of its own recitals.
[Macabingkil vs. Peoples Homesite and Housing Corporation, 72 SCRA 326)
Q: A decision of the Regional Trial Court adverse to Delia was received by her counsel on 13
January 1994. As Delia was leaving for Canada she forthwith instructed her counsel to
appeal because according to her she was prevented from fully presenting her case in the
court through fraudulent acts of the prevailing party. When Delia returned from abroad on 1
August 1994 she discovered that her case was not appealed as her counsel had died a day
after she left. Moreover, the other party has filed a motion for issuance of a writ of execution
which remains pending in court.
As the new counsel of Delia, what course or courses of action will you pursue to protect her
interest? Discuss fully. (1995 Bar Question)
Answer:
I would file an action for annulment of the judgment with the Court of Appeals on the ground of
extrinsic and collateral fraud because my client was prevented from fully presenting her case in
court through fraudulent acts of the prevailing party. (Sec. 9(2), BP 129)
Alternative Answer:
I would file a petition for relief under Rule 38 on the ground that my clients failure to appeal on
time was due to the death of her lawyer one day after she left for Canada.
b. Period to file action
c. Effects of judgment of annulment
A.
May an order denying the probate of a will still be overturned after the period
to appeal therefrom has lapsed? Why? (3%)
B.
What should the court do if, in the course of intestate proceedings, a will is
found and it is submitted for probate? Explain. (2%)
135
SUGGESTED ANSWER:
A.
Yes, an order denying the probate of a will may be overturned after the period to
appeal therefrom has lapsed. A petition for relief may be filed on the grounds of fraud,
accident, mistake or excusable negligence within a period of sixty (60) days after the
petitioner learns of the judgment or final order and not more than six (6) months after
such judgment or final order was entered [Rule 38, secs. 1 end 3; Soriano v. Asl, 100 Phil.
785 (1957)]. An action for annulment may also be filed on the ground of ext rinsic fraud
within four (4) years from its discovery, and if based on lack of Jurisdiction, before it is
barred by laches or estoppel. (Rule 47, secs. 2 and 3)
B.
If a will is found in the course of intestate proceedings and it is submitted for
probate, the intestate proceedings will be suspended until the will is probated. Upon the
probate of the will, the intestate proceedings will be terminated. (Rule 32, sec. 1).
5. Collateral attack of judgments
Answer:
namely:
a. By petition for relief from judgment under Rule 38 on the grounds of fraud, accident,
mistake or excusable negligence within sixty days from learning of the Judgment and not
more than six months from its entry;
b. By direct action to annul or enjoin the enforcement of the judgment when the defect is not
apparent on its face or from the recitals contained in the Judgment;
c. By direct action, such as certiorari, or by a collateral attack against the judgment which is
void on its face or when the nullity of the Judgment is apparent by virtue of its own recitals.
[Macabingkil vs. Peoples Homesite and Housing Corporation, 72 SCRA 326)
Q. Execution, satisfaction and effect of judgments
1. Difference between finality of judgment for purposes of appeal; for purposes of execution
2. When execution shall issue (Execution as a matter of right, Discretionary execution)
Q: A files a case against B. While awaiting decision on the case, A goes to the United States to
work. Upon her return to the Philippines, seven years later, A discovers that a decision was
rendered by the court in her favor a few months after she had left. Can A file a motion for
execution of the judgment? Reason briefly. (5%) (2007 Bar Question)
SUGGESTED ANSWER:
On the assumption that the judgment had been final and executory for more than five (5)
years as of As return to the Philippines seven (7) years later, a motion for execution of the
judgment is no longer availing because execution of judgment by mere motion is allowed by the
Rules only within five (5) years from entry of judgment; thereafter, and within ten (10) years from
entry of judgment, an action to enforce the judgment is required.
136

A.
xxx
B.
The trial court rendered judgment ordering the defendant to pay the plaintiff moral
and exemplary damages. The judgment was served on the plaintiff on October 1, 2001 and
on the defendant on October 5, 2001. On October 8, 2001, the defendant filed a notice of
appeal from the judgment, but the following day, October 8, 2001, the plaintiff moved for the
execution of the judgment pending appeal. The trial court granted the motion upon the
posting by the plaintiff of a bond to indemnify the defendant for damages it may suffer as a
result of the execution. The court gave as a special reason for its order the imminent
insolvency of the defendant. Is the order of execution pending appeal correct? Why? (5%)
SUGGESTED ANSWER:
B.
No, because awards for moral and exemplary damages cannot be the subject of
execution pending appeal. The execution of any award for moral and exemplary da mages
is dependent on the outcome of the main case. Liabilities for moral and exemplary
damages, as well as the exact amounts remain uncertain and indefinite pending resolution
by the Court of Appeals or Supreme Court. [RCPI v. Lantin, 134 SCRA 395 (1985);
International School, Inc. v. Court of Appeals, 309 SCRA 474 (1999)].
ALTERNATIVE ANSWER:
B.
Yes, because only moral and exemplary damages are awarded in the judgment and
they are not dependent on other types of damages.
Moreover, the motion for execution was filed while the court had jurisdiction over
the case and was in possession of the original record. It is based on good reason which is
the imminent insolvency of the defendant. (Rule 39, sec. 2).
A.
A default judgment was rendered by the RTC ordering D to pay P a sum of money. The
judgment became final, but D filed a petition for relief and obtained a writ of preliminary
injunction staying the enforcement of the judgment. After hearing, the RTC dismissed D's
petition, whereupon P immediately moved for the execution of the judgment in his favor.
Should Ps motion be granted? Why? (3%)
B.
xxx
SUGGESTED ANSWER:
Ps immediate motion for execution of the judgment in his favor should be granted because
the dismissal of Ds petition for relief also dissolves the writ of preliminary injunction staying the
enforcement of the judgment, even if the dismissal is not yet final. [Golez v. Leonidas, 107 SCRA 187
(1981)].
Q: While the ejectment case was pending before the Municipal Court, Juan Santos religiously
deposits ail current rentals. In due time, the judge ordered Juan Santos to pay all rents until
he vacates the premises as well as attorneys fees in the amount of P5.000.CX). Maria Cruz
137
moves for immediate execution on the ground that Juan Santos did not deposit the attorneys
fees of P5.000.00 and that he did not put a supersedeas bond for the award.
Should the court grant immediate execution? Decide with reasons. (1990 Bar Question)
Answer:
No, because a supersedeas bond covers only the rents unpaid up to this time of the
judgment. Since Juan Santos had deposited all current rentals while the ejectment case was pending
before the Municipal Court, a supersedeas bond was not required. (Once v. Gonzales, 76 SCRA 258).
Attorneys fees are not required to be deposited in order to stay execution.
3. How a judgment is executed
a. Execution by motion or by independent action
a)
Bar by prior judgment from conclusiveness of Judgment
b)
xxx
Answer:
a)
Bar by prior judgment is the doctrine of res judicata, which bars a second action when there
is identity of parties, subject matter and cause of action. (Sec. 49 (b) of former Rule 39; Sec. 47 (b) of
new Rule 39). Conclusiveness of judgment precludes the relitigation of a particular issue in another
action between the same parties on a different cause of action. (Sec. 49 (c) of former Rule 39; sec.
47 (cl of new Rule 39).
b)
xxx
Q: A, a resident of Dagupan City, secured a favorable judgment in an ejectment case against

X. a resident of Quezon City, from the Metropolitan Trial Court of Manila. The judgment,
entered on 15 June 1991, had not as yet been executed.
In July 1996, A decided to enforce the judgment of the Metropolitan Trial Court of
Manila. What is the procedure to be followed by A in enforcing the Judgment?
(a)
(b)
With what court should A Institute the proceedings? (1997 Bar Question)
Answer:
(a)
A can enforce the Judgment by another action reviving the judgment because it can no
longer be enforced by motion as the live-year period within which a Judgment may be enforced by
motion has already expired.. (Sec. 6 of Rule 39).
(b)
A may institute the proceedings in the Regional Trial Court in accordance with the rules of
venue because the enforcement of the Judgment is a personal action incapable of pecuniary
estimation.
Alternative Answer:
(b)
A may Institute the proceeding in a Metropolitan Trial Court which has Jurisdiction over the
area where the real property involved is situated. (See. 1 of Rule 4).
138
Q: A" obtained a judgment against B for the payment of money. For failure to appeal, the
judgment became final on July 5, 1975 Writs of execution were returned unsatisfied, for the
sheriff was unable to find property of B subject to execution. On June 30, 1984, A" located
some property of B". Whereupon A immediately filed in July 1984 a motion for the
issuance of an alias writ of execution.
If you were the judge, will you grant the writ? Why? (1987 Bar Question)
Answer:
No, because a motion for the issuance of an alias writ of execution may be granted only
within five years from the entry of the judgment on July 5, 1975. It will be necessary for A to file
an action to enforce or revive the judgment before the lapse of ten years. (Sec. 6 of Rule 39)
b. Issuance and contents of a writ of execution
Q: The lifetime of a writ of execution is sixty (60) days from its receipt by the officer required
to enforce it. Suppose on the 60th day of the life of the writ the sheriff levied on the property
of the judgment debtor and sold it only a month after. Is the sale valid? Explain. (1995 Bar
Question)
Answer:
The writ of execution may be levied at any time up to and including the last day of the writ.
After the writ has been levied on the property within the lifetime of the writ, it may be sold
thereafter. (Alagar us. Pio de Roda, 29 Phil. 129)
Alternative Answer:
The property may even be sold beyond the five-year period within which the judgment may
be executed on motion, but not beyond the ten-year period of prescription of judgments.
[Government vs. Echaus, 71 Phil. 318; Jalandoni us. Philippine National Bank, 105 SCRA 102)
Q: As the decision of the Regional Trial Court became final and executory on November
15,1987, plaintiff, the prevailing party, filed a motion for a writ of execution. The writ of
execution was issued on December 1, 1987.
Pursuant to the writ, the sheriff levied upon the house and lot of defendant and scheduled
the sale thereof for public auction on January 26, 1988. The auction sale was repeatedly
postponed upon request of defendant who, in the meantime, was making partial payments
to plaintiff.
The last scheduled auction sale was on November 3, 1992 but the same did not materialize
because of the request
of the defendant which was granted by plaintiff on account of the partial payment made by
defendant on the date.
As there still remained an unpaid balance as of July 15. 1993, plaintiff filed a motion for the
issuance of an alias writ of execution of that date. Defendant opposed the motion on the
ground that more than five years had lapsed from the finality of the decision such that
139
plaintiffs remedy is to file a new action for revival of judgment.

Should the motion for issuance of an alias writ of execution be granted? Explain. (1993 Bar
Question)
Answer:
Yes, because the running of the five-year period from the date the decision became final and
executory on November 15, J 987. within which the judgment could be executed on motion, was
interrupted or suspended by the agreement of the parties to suspend enforcement of the judgment
on account of partial payments made by defendant. (Torralba us. De Los Angeles, 96 SCRA 69).
Alternative Answer:
Since there was already a levy on execution, there was- no need for an alias writ of
execution.
Q: Enforcing a writ of execution issued by the Pasig Regional Trial Court in a civil action, the
sheriff attached several pieces of machinery and equipment found in defendants place of
business. Antonio, Sadalay filed with the sheriff an affidavit of third-party claim stating that
the attached properties belong to him, not to the defendant. (1991 Bar Question)
(a)
claim?
Can Sadalay intervene in the case and ask the Pasig RTC to resolve his third-party
Answer:
(a)
No, Sadalay may not intervene in the case because intervention is allowed only before
or during the trial of the case. In this case there is already a final and executory Judgment. (Sec. 1 of
Rule 12; Bayer Phils. v.Agana. 63 SCRA 355) However, he may ask the Pasig RTC to resolve preliminarily whether the sheriff acted rightly or wrongly in levying execution on the properties in
question. (Ong v. Tating, 149 SCRA 265)
(b)
If Sadalay decides to file a separate action in the Regional Trial Court in Makati to
vindicate his claim, may he validly obtain a writ of injunction from the Makati RTC to enjoin
the sale in execution of the levied properties?
Answer:
(b)
Yes, because a judgment rendered in his favor by the Makati court declaring him to be the
owner of the properties levied on would not constitute interference with the powers or processes
of the Pasig Court which rendered the judgment to enforce the execution. If that is so, an
interlocutory order such as the writ of preliminary injunction against the sheriff, upon a claim and
prima facie showing of ownership, cannot be considered as such interference. (Abiera v. CA, 45
SCRA 314; Sy v. Discaya, 181 SCRA 378)
c. Execution of judgments for money
Q: Antique dealer Mercedes borrowed P1, 000,000 from antique collector Benjamin.
Mercedes issued a postdated check in the same amount to Benjamin to cover the debt.
140
On the due date of the check, Benjamin deposited it but it was dishonored. As despite
demands, Mercedes failed to make good the check, Benjamin filed in January 2009 a
complaint for collection of sum of money before the RTC of Davao.
Mercedes filed in February 2009 her Answer with Counterclaim, alleging that before the
filing of the case, she and Benjamin had entered into a dacion enpago agreement in which
her vintage P1, 000,000 Rolex watch which was taken by Benjamin for sale on commission
was applied to settle her indebtedness; and that she incurred expenses in defending what
she termed a "frivolous lawsuit.. She accordingly prayed for P50, 000 damages.
A.
xxx
B.
Suppose there was no Counterclaim and Benjamin's complaint was not dismissed,
and judgment was rendered against Mercedes for P1, 000,000. The judgment became final
and executory and a writ of execution was correspondingly issued.
Since Mercedes did not have cash to settle the judgment debt, she offered her Toyota
Camry model 2008 valued at P1.2 million. The Sheriff, however, on request of Benjamin,
seized Mercedes 17th century ivory image of the La Sagrada Familia estimated to be worth
over P1, 000,000. Was the Sheriffs action in order? (3%) (2010 Bar Question)
SUGGESTED ANSWER:
No, the Sheriff's action was not in order. He should not have listened to Benjamin, the
judgment obligee/creditor, in levying on the properties of Mercedes, the judgment obligor/debtor.
The option to immediately choose which property or part thereof may be levied upon, sufficient to
satisfy the judgment, is vested by law (Rule 39, Sec. 9 (b) upon the judgment obligor, Mercedes, not
upon the judgment obligee, Benjamin, in this case. Only if the judgment obligor does not exercise
the option, is the Sheriff authorized to levy on personal properties if any, and then on the real
properties if the personal properties are insufficient to answer for the judgment.
Q: The writ of execution was returned unsatisfied. The judgment obligee subsequently
received information that a bank holds a substantial deposit belonging to the judgment
obligor. If you were the counsel of the judgment obligee, what steps would you take to reach
the deposit to satisfy the judgment? (3%) (2008 Bar Question)
SUGGESTED ANSWER:
Since a writ of execution is valid for five years from its issuance, the sheriff should be
informed and requested to garnish or levy on execution the bank deposits belonging to the
judgment obligor (Sec. 9[c], Rule 39, Rules of Court). Then the judgment creditor move for a court
order directing the application of such bank deposit to the satisfaction of the judgment (Sec. 40,
Rule 39, Rules of Court).
Q: If the bank denies holding the deposit in the name of the judgment obligor but your
clients informant is certain that the deposit belongs to the judgment obligor under an
assumed name, what is your remedy to reach the deposit? (3%) (2008 Bar Question)
SUGGESTED ANSWER:
To reach the bank deposit belonging to the judgment obligor but under an assumed name, a
motion may be filed for a court order requiring the proper bank officer to appear in court for
examination under oath as to such bank deposit, and subsequently move for a court order
141
authorizing the filing of an action against such bank forthe recovery of the judgment obligors
deposit/interest therein and to forbid a transfer or other disposition of such deposit/interest
within 120 days from notice of the order (Secs. 37 and 43, Rule 39, Rules of Court).
1.
In an illegal detainer case the Municipal Trial Court ruled in favor of plaintiff-lessor
who, not being satisfied with the increase of rentals granted him by the court, appealed
praying for further increase thereof. Defendant-lessee did not appeal.
a)
Can plaintiff-lessor, as appellant, move for execution pending appeal? Explain.
Can defendant-lessee, as appellee, validly resist the immediate execution of the

judgment? Explain.
b)
2.
In his appellee's brief, defendant-lessee not only controverted the issue on rentals
raised by plaintiff-lessor but also assailed the judgment of the trial court on the ground that
the same was totally contrary to the admitted evidence showing him to be the owner of the
property entitled to possession of the premises.
Can the appellate court consider the issue of ownership raised by the appellee? Discuss fully.
Answer:
1.
a)
Yes, if defendant fails to pay or deposit the amount of rentals adjudged by the court
within the reglementary period. (City of Manila vs. CA, 149 SCRA 143)
b)
Yes, as long as he pays or deposits the amount of rental adjudged.
2.
No, because a lessee he is estopped from raising the question of ownership. (Art. 1456, Civil
Code; Sec. 2(b), Rule 131; Fije vs. CA, 233 SCRA 587)
Q: Writ of Execution were returned unsatisfied by the Sheriff on the execution of a final
judgment rendered in favor of A for a siim of money against B on June 5,1983. On June 30,
1988, A found some property in the name of B so that he immediately filed on JuJy 1, 1988 a
Motion for the Issuance of an.Alias Writ of Execution. (1988 Bar Question)
a)
As the judge, will you grant the Writ? Explain. '
b)
May a judgment in a civil case be executed pending appeal? Explain.
Answer:
The answer depends on when the judgment was entered. If the final judgment was entered
on June 5,1983, I will not grant the Writ because more than five years had elapsed from the date of
entry of the judgment or from the date it became final and executory. However, if the final judgment
rendered on June 5, 1983 was entered or became final and executory after July 1, 1983, I would
grant the Writ. (Sec. 6 of Rule 39)
Alternative Answer:
(a)
Since the question does not specify the date when the judgment was entered, which date is
142
the reckoning of the five-year period within which judgment may be executed by motion, the
motion may be granted on the assumption that the entry of judgment was made after July 1, 1983.
In this case, the five-year period from entry of judgment has not yet elapsed. Hence, the judgment
can still be executed by mere motion.
Committees Recommendation:
As the facts of the case given used the word rendered and not entered, the examinees should not be
blamed.
(b)
Yes, upon good reasons to be stated in a special order. (Sec. 2 of Rule 39). The motion for
execution pending appeal should be filed before the perfection of the appeal. (Belgado vs. IAC, 14
SCRA 258)
Other Answer:
(a)
(1) The motion for execution pending appeal may be granted upon good reasons by the
appellate court. (Philippine British Assurance Co. vs. IAC, 150 SCRA 520).
(2) A judgment in an action for injunction, receivership and accounting is executory pending
appeal, unless otherwise ordered by the court. (Sec. 4 of Rule 39)
(3) A judgment rendered against the defendant in an action of forcible entry or illegal
detainer is immediately executory. (Sec. 8 of Rule 70)
4. Properties exempt from execution
Q: A writ of execution was served by a sheriff upon defendant so that plaintiff may be placed
in possession of the property held by the former. The defendant refused to vacate and
surrender the premises to plaintiff. Can defendant be held for indirect contempt for
disobedience of, or resistance to a lawful writ issued by the court? Explain. (1995 Bar
Question)
Answer:
No, because it is the sheriff who must enforce the writ of execution for the delivery of
property by ousting therefrom the person against whom the Judgment is rendered and placing the
judgment creditor in possession. (Sec. 13. Rule 39). The writ of possession was directed to the
Sheriff who was to deliver the property to the plaintiff. The writ did not command the plaintiff to do
anything, hence he could not be held guilty of indirect contempt. [Barrele vs. Amila, 230 SCRA 219)
5. Proceedings where property is claimed by third persons
a. In relation to third-party claim in attachment and replevin
Q: JKs real property is being attached, by the sheriff in a civil action for damages against LM.
JK claims that he is not a party to the case: that his property is not involved in said case: and
that he is the sole registered owner of said property. Under the Rules of Court, what must JK
do to prevent the Sheriff from attaching his property? (5%) (2000 Bar Question)
SUGGESTED ANSWER:
143
If the real property has been attached, the remedy is to file a third-party claim. The thirdparty claimant should make an affidavit of his title to the property attached, stating the grounds of
his title thereto, and serve such affidavit upon the sheriff while the latter has possession of the
attached property, and a copy thereof upon the attaching party. (Sec. 14, Rule 57, 1997 Rules of
Civil Procedure.) The third-party claimant may also intervene or file a separate action to vindicate
his claim to the property involved and secure the necessary reliefs, such as preliminary injunction,
which will not be considered as interference with a court of coordinate Jurisdiction. (Ong v. Tating,
149 SCRA 265, (1987)
Q: Its decision in Civil Case No. 93-1000 entitled Beta Inc. vs. Jaime dela Cruz" having
become final and executory, the RTC of Manila (Branch 21) issued a writ of execution for its
enforcement. The sheriff levied upon certain chattels and scheduled the auction sale thereof.
However, Jacinto Santamaria filed a third-party claim with the sheriff asserting that the
chattels levied upon by the latter belong to him and not to the judgment debtor (Jaime dela
Cruz). Because the Judgment creditor (Beta, Inc.) posted an indemnity bond in favor of the
sheriff, the latter refused to release the chattels and threatened to proceed with the auction
sale.
Consequently, Jacinto Santamaria filed an action against Beta Inc. and the sheriff in the RTC
of Bulacan (Branch 8), docketed as Civil Case No. 93-487, laying claim to the levied chattels
and seeking to enjoin the sheriff from proceeding with the auction sale thereof. As prayed
for, the Court in Civil Case No. 93-487 issued a temporary restraining order, followed by a
writ of preliminary injunction, by way of enjoining the sheriff from implementing the writ of
execution issued in Civil Case No. 93-1000 against the levied chattels pending determination
of Jacinto Santamarias claim thereto .Beta.lnc. and the sheriff filed a motion to dismiss Civil Case No. 93-487 on the ground that
the court has no power to interfere with the judgment of the KIC of Manila (Branch 21), a
coordinate court.
How should the motion to dismiss be resolved? Explain. (1993 Bar Question)
Answer:
The motion to dismiss should be denied. A third-party claimant has the right to vindicate his
claim to the property by any proper action. It is the RTC of Bulacan which has the Jurisdiction to
determine the ownership of the property subject of the third-party claim. Obviously, a Judgment
rendered in favor of the third-party claimant would not constitute interference with the powers or
processes of the RTC of Manila. If that be so and it is property, being that of a stranger, is not
subject to levy on execution then an interlocutory order such as a preliminary injunction, upon a
claim and prima facie showing of ownership by the claimant, cannot be considered as such
interference either. Moreover, the writ is issued against the sheriff, not against the court, [Abiera
vs. Court of Appeals. 45 SCRA 314)
6. Rules on Redemption
Q: Having obtained favorable judgment in his suit for a sum of money against Patricio,
Orencio sought the issuance of a writ of execution. When the writ was issued, the sheriff
levied upon a parcel of land that Patricio owns, and a date was set for the execution sale.
[a]
xxx
144
[b]
If Orencio is the purchaser of the property at the execution sale, how much does he
have to pay? Explain. (2%) (2009 Bar Question)
SUGGESTED ANSWER:
Orencio, the judgment creditor should pay only the excess amount of the bid over the
amount of the judgment, if the bid exceeds the amount of the judgment.
[c]
If the property is sold to a third party at the execution sale, what can Patricio do to
recover the property? Explain. (2%) (2009 Bar Question)
SUGGESTED ANSWER:
Patricio can exercise his right of legal redemption within 1 year from date of registration of
the certificate of sale by paying the amount of the purchase price with interest of 1% monthly, plus
assessment and taxes paid by the purchaser, with interest thereon, at the same rate.
7. Examination of judgment obligor when judgment is unsatisfied
Q: The plaintiff, a Manila resident, sued the defendant, a resident of Malolos, Bulacan, in the
RTC-Manila for a sum of money. When the sheriff tried to serve the summons with a copy of
the complaint on the defendant at his Bulacan residence, the sheriff was told that the
defendant had gone to Manila for business and would not be back until the evening of that
day. So, the sheriff served the summons, together with a copy of the complaint, on the
defendant's 18-year-old daughter, who was a college student. For the defendant's failure to
answer the complaint within the reglementary period, the trial court, on motion of the
plaintiff, declared the defendant in default. A month later, the trial court rendered judgment
holding the defendant liable for the entire amount prayed for in the complaint.
A.
After the judgment had become final, a writ of execution was issued by the court. As
the writ was returned unsatisfied, the plaintiff filed a motion for an order requiring the
defendant to appear before it and to be examined regarding his property and income. How
should the court resolve the motion? (2%)
B.
Seven years after the entry of judgment, the plaintiff filed an action for its revival.
Can the defendant successfully oppose the revival of the judgment by contending that it is
null and void because the RTC-Manila did not acquire jurisdiction over his person? Why?
(3%)
SUGGESTED ANSWER:
A.
The RTC-Manila should deny the motion because it is in violation of the rule that no
judgment obligor shall be required to appear before a court, for the purpose of examination
concerning his property and income, outside the province or city in which such obligor resides. In
this case the judgment obligor resides in Bulacan. (Rule 39, sec. 36).
B.
Yes. because the sheriff did not exert sufficient effort to serve summons personally on the
defendant within a reasonable time and hence the RTC-Manila did not acquire jurisdiction over his
person. [Rule 14, secs. 6 and 7; De Guzman v. Court of Appeals, 271 SCRA 728 (1997)].
ALTERNATIVE ANSWER:
145
A.
No, the defendant is deemed to have waived the lack of jurisdiction over his person because
he did not raise this issue: 1) in opposing the motion to declare him in default; 2) in a motion for
reconsideration of or appeal from the judgment by default; and 3) in opposing the motion requiring
him to appear and be examined regarding his property.
8. Effect of judgment or final orders
Q: BB files a complaint for ejectment In the Metropolitan Trial Court on the ground of nonpayment of rentals against JJ. After two days, JJ files In the Regional Trial Court a complaint
against BB for specific performance to enforce the option to purchase the parcel of land
subject of the ejectment case. What is the effect of JJs action on BBs complaint? Explain.
SUGGESTED ANSWER:
There is no effect. The ejectment case involves possession de facto only. The action to
enforce the option to purchase will not suspend the action of ejectment for non-payment of rentals.
[Wilmon Auto Supply Corp. v. Court of Appeals, 208 SCRA 108 [1992]).
9. Enforcement and effect of foreign judgments or final orders
Q: What are the rules on the recognition and enforcement of foreign judgments in
our courts? (6%) (2007 Bar Question)
SUGGESTED ANSWER:
Judgments of foreign courts are given recognition in our courts thus:
In case of judgment upon a specific thing, the judgment is conclusive upon the title to the
thing, unless otherwise repelled by evidence of lack of jurisdiction, want of due notice to the party,
collusion, fraud, or clear mistake of law or fact (Rule 39, Sec. 48 [a], Rules of Court); and
In case of judgment against a person, the judgment is presumptive evidence of a right as between
the parties and their successors in interest by subsequent title, unless otherwise repelled by
evidence on grounds abovestated (Rule 39, Sec. 48 [b], R,ules of Court).
However, judgments of foreign courts may only be enforced in the Philippines through an
action validly heard in a Regional Trial Court. Thus, it is actually the judgment of the Philippine
court enforcing the foreign judgment that shall be executed.
Q: Can a foreign arbitral award be enforced in the Philippines under those rules?
Explain briefly. (2%)(2007 Bar Question)
SUGGESTED ANSWER:
No, a foreign arbitral award cannot be enforced in the Philippines under the rules on the
recognition and enforcement of foreign judgments above-stated. A foreign arbitral award is not a
foreign judgment, and pursuant to the Alternative Dispute Resolution Act of 2004 (R.A. No. 9285),
in relation to 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, the recognition and enforcement of the foreign arbitral awards shall be in accordance with
the rules of procedure to be promulgated by the Supreme Court. At present, the Supreme Court is
yet to promulgate rules of procedure on the subject matter.
146
Q: How about a global injunction issued by a foreign court to prevent dissipation of

funds against a defendant therein who has assets in the Philippines ? Explain briefly.
SUGGESTED ANSWER:
Yes, a global injunction issued by a foreign court to prevent dissipation of funds against a
defendant who has assets in the Philippines may be enforced in our jurisdiction, subject to our
procedural laws.
As a general rule, no sovereign is bound to give effect within its dominion to a judgment or order of
a tribunal of another country. However, under the rules of comity, utility and convenience, nations
have established a usage among civilized states by which final judgments of foreign courts of
competent jurisdiction are reciprocally respected and rendered efficacious under certain conditions
that may vary in different countries (St. Aviation Services Co., Pte.,Ltd. v. Grand International
Airways, Inc., 505 SCRA 30 [2006]; Asiavest Merchant Bankers (M) Berhad v. Court of Appeals, 361
SCRA 489 [2001]).
Q: Under Article 1144 of the New Civil Code, an action upon a judgment must be brought
within 10 years from the time the right of action accrues.
Is this provision applicable to an action filed in the Philippines to enforce a foreign
judgment? Explain. (2005 Bar Question)
SUGGESTED ANSWER:
Article 1144 of the Civil Code is applicable because it is merely an action in a domestic court
to enforce a foreign judgment. Foreign judgments should be treated in the same manner as
domestic judgments.
Article 1144 of the Civil Code which requires that an action upon a judgment (though
without distinction) must be brought within 10 years from the time the right of action accrues, does
not apply to an action filed in the Philippines to enforce a foreign judgment. While we can say that
where the law does not distinguish, we should not distinguish, still the law does not evidently
contemplate the inclusion of foreign judgments. A domestic judgment may be enforced by motion
within five years and by action within the next five years. That is not the case with respect to
foreign judgments which cannot be enforced by mere motion. A foreign judgment, in fact, is merely
presumptive evidence of a right between the parties and their successors in interests. (Van Dorn v.
Romillo, Jr., 139 SCRA 139 [19851). The word judgment refers to one mentioned ill Section 1, Rule
36, which is filed with the clerk of court. If no period is fixed in our law, the period of prescription is
five (5) years under Art. 1149 of the Civil Code.
(a)
Give three instances when a Philippine court can take judicial notice of a foreign law.
(b)
How do you prove a written foreign law?
(c)
Suppose a foreign law was pleaded as part of the defense of defendant but no
147
evidence was presented to prove the existence of said law, what is the presumption to be
taken by the court as to the wordings of said law?
Answer:
(a)
The three instances when a Philippine court can take judicial notice of a foreign law are: (1)
when the Philippine courts are evidently familiar with the foreign law (Moran, Vol. 5, p. 34,1980
edition): (2) when the foreign law refers to the law of nations (Sec. 1 of Rule 129) and, (3) when it
refers to a published treatise, periodical or pamphlet on the subject of law if the court takes judicial
notice of the fact that the writer thereof is recognized in his profession or calling as expert on the
subject (Sec. 4(5, Rule 130).
(b)
A written foreign law may be evidenced by an official publication thereof or by a copy
attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if
the record is not kept in the Philippines, with a certificate that such officer has the custody, if the
office in which the record is kept is in a foreign country, the certificate may be made by a secretary
of the embassy or legation, consul general, consul, vice-consul, or consular agent or by any officer in
the foreign service of the Philippines stationed in the foreign country in which the record is kept,
and authenticated by the seal of his office (Sec. 24, Rule 132, Zalamea v. CA, 228 SCRA 23).
(c)
The presumption is that, the wordings of the foreign law are the same as the local law.
(Northwest Orient Airlines v. Court of Appeals. 241 SCRA 192; Moran, Vol. 6, page 34, 1980 edition;
Urn v. Collector of Customs, 36 Phil. 472). This is known as the processual presumption.
Alternative Answers:
(a)
The Philippine court can also take judicial notice of a foreign law: 1) when the foreign
statute is accepted by the Philippine government. (Rep. v. Guanzon, 61 SCRA 360); 2) when a
foreign judgment containing foreign law is recognized for enforcement (Sec. 48, Rule 39); and 3) if
it refers to common law doctrines and rules from which many of our laws were derived (Alzua v.
Johnson (21 Phil. 308]).
(b)
A written foreign law is proved by presenting a published treatise, periodical or pamphlet
on said foreign law if the court may take judicial notice, or a witness expert in the subject testifies,
that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject (Sec. 46, Rule 130).
R. Provisional remedies
a.
What are the provisional remedies under the rules? (2%)
SUGGESTEDANSWER:
a.
The provisional remedies under the rules are preliminary attachment, preliminary
injunction, receivership, replevin, and support pendente lite. (Rules 57 to 61, Rules of Court).
148
Q: What is an interlocutory order? (2006 Bar Question)

SUGGESTED ANSWER:
An interlocutory order is an order which decides some point or matter between the
commencement and end of the suit but it is not the final decision on the whole controversy. It
leaves something to be done by the court before the case is finally decided on the merits.
(Metropolitan Bank &. Trust Co. v. Court of Appeals, 356 SCRA 563 [2001]; Gallardo v. People, 456
SCRA 494 [2005]).
1. Nature of Provisional Remedies
Q: What is the purpose of provisional remedies? (1996 Bar Question)
Answer:
1)
The purpose of provisional remedies is to preserve or protect the rights or interests of the
parties during the pendency of the principal action. (Calo vs. Roldan, 76 Phil. 445)
2. Preliminary Attachment
a.
xxx
b.
Distinguish attachment from garnishment. (2%)
SUGGESTEDANSWER:
a.
xxx
b.
Attachment and garnishment are distinguished from each other as follows: Attachment is a
provisional remedy that effects a levy on property of a party as security for the satisfaction of any
judgment that may be recovered, while garnishment is a levy on debts due the judgment obligor or
defendant and other credits, including bank deposits, royalties and other personal property not
capable of manual delivery under a writ of execution or a writ of attachment.
a. Grounds for issuance of writ of attachment
Q: Upon failure of X to pay the promissory note for P100,000.00 which he executed in favor
of Y, the latter filed a complaint for a sum of money with application for the issuance of a
writ of preliminary attachment alleging therein that X is about to dispose of his properties in
fraud of his creditors. (1991 Bar Question)
(a)
May the court issue the writ immediately upon the filing of the complaint and
before service of summons?
Answer:
(a)
Yes, because Sec. 1 of Rule 57 provides that writ of preliminary attachment may be
obtained at the commencement of the action.
Another Answer:
149
In the case of Sievert v. CA, 168 SCRA 692, it was ruled that a hearing on the application for
a writ of preliminary attachment may not be held without prior service of summons.
(b)
If service of summons is indispensable before the writ may be issued, is hearing on
the application necessary?
Answer:
(b)
No, because a writ of preliminary attachment maybe issued ex-parte. {Toledo v. Judge
Burgos, 164 SCRA 513: Cosiquien v. CA, 188 SCRA 619)
(c)
If the writ was issued and X filed a motion to quash, the attachment, may this motion
be granted ex-parte?
Answer:
(c)
No, because whether the basis of the motion to quash the attachment is a cash deposit or
counterbond on the ground that the same was improperly or irregularly issued, a hearing is
necessary. (Secs. 12 and 13 of Rule 57; Mindanao Savings & Loan Association u. CA, 172 SCRA 480)
Q: On June 18, 1989, Mario Reyes executed a promissory note for P50,000.00 payable to
Norma Alajar not later than June 18,1990. Mario Reyes defaulted in the payment of the
promissory note and a collection suit was filed against him before the Regional Trial Court of
Quezon City.
After the complaint had been filed, Norma Alajar discovers that Mario Reyes petition for the
issuance of an immigrant visa was approved by the United States Embassy, and that Mario
Reyes had been disposing of all his properties.
What remedy may be availed of by Norma Alajar to protect her interest? Explain your
answer. (1990 Bar Question)
Answer:
Norma Alajar should file a verified application for the Issuance of a writ of preliminary
attachment on the ground that Mario Reyes is about to depart from the Philippines and had been
disposing of all his properties with the intent to defraud his creditors. (Sec. 1(a) and (e) of Rule 57).
Q: The accused filed a motion to quash the information on two grounds, to wit, the facts
charged do not constitute an offense and there are averments in the formation which, if true,
would constitute a legal justification. The motion was denied. Eventually, the accused was
convicted. He appealed to the Court of Appeals. The new defense counsel discovered that the
information was filed on a Monday and that the last day for the filing of the information
actually fell on the preceding Sunday.
Had the offense prescribed? If it had, could the defense invoke for the first time on appeal as
error, the trial court's non-dismissal of the information on the ground of prescription? (1987
Bar Question)
Answer:
Yes. The offense had prescribed. Where the last day for the filing of an information falls on a
150
Sunday or legal holiday, the period of prescription cannot be extended up to the next working day
as prescription automatically sets in. (Yapdiangco vs. Buencamino. 122 SCRA 713)
Yes. The defense may invoke for the first time on appeal the non-dismissal of the
information on the ground of prescription, inasmuch as under the 1985 Rules on Criminal
Procedure extinction of criminal action or liability, which includes prescription, is not deemed
waived by failure to move to quash on that ground. (Sec. 8 Rule 117)
b. Requisites; Issuance and contents of order of attachment; affidavit and bond
a)
May a writ of preliminary attachment be Issued ex parte? Briefly state the reason(s)
for your answer. (3%)
b)
xxx
SUGGESTED ANSWER:
a)
Yes, an order of attachment may be issued ex parte or upon motion with notice and
hearing. (Sec. 2 of Rule 57, Rules of Civil Procedure) The reason why the order may be issued ex
parte is: that requiring notice to the adverse party and a hearing would defeat the purpose of the
provisional remedy and enable the adverse party to abscond or dispose of his property before a
writ of attachment issues. (Mindanao Savings and Loan Association, Inc. v. Court of Appeals, 172
SCRA 480).
b)
xxx

a.
xxx
b.
xxx
c.
xxx
d.
xxx
e.
May damages be claimed by a party prejudiced by a wrongful attachment even if the
judgment is adverse to him? Explain. (2%)
SUGGESTEDANSWER:
a.
xxx
b.
xxx
c.
xxx
d.
xxx
e.
Yes, damages may be claimed by a party prejudiced by a wrongful attachment even if the
judgment is adverse to him. This is authorized by the Rules. A claim for damages may be made On
account of improper, irregular or excessive attachment, which shall be heard with notice to the
adverse party and his surety or sureties. (Sec. 20, Rule 57, 1997 Rules of Civil Procedure; Javellana
v. D. O. Plaza Enterprises Inc., 32 SCRA 281.)
151
Q: On May 2, 1992, Precision, Inc. filed a verified complaint for recovery of a sum of money
against Summa, Inc. The complaint contained an ex-parte application for a writ of
preliminary attachment.
On May 3, 1993, the trial court issued an order granting the ex-parte application and fixing
the attachment bond at P2 Million.
On May 8, 1992, the attachment bond having been submitted by Precision, Inc., the writ of
preliminary attachment was issued.
On May 9, 1992, summons together with a copy of the complaint, the writ of preliminary
attachment and a copy of attachment bond, was served on Summa, Inc., and pursuant to the
writ, the sheriff attached properties belonging to Summa. Inc.
On July 6. 1992, Summa, Inc. filed a motion to discharge the attachment for alleged lack of
jurisdiction to Issue the same because, at the time the order of attachment and the writ of
preliminary attachment were issued (on May 3 and 8, 1992, respectively), the court had not
yet acquired Jurisdiction over the person of Summa, Inc. It argued that a writ of preliminary
attachment may not issue ex-parte against a defendant before acquisition of jurisdiction
over the latter s person by service of summons or his voluntary submission to the courts
authority.
Should the motion be granted? Why? (1993 Bar Question)
Answer:
No. because a writ of preliminary attachment may be issued ex-parte against a defendant
before acquisition of jurisdiction over the latters person by service of summons or his voluntary
submission to the Courts authority. Sec. 1 of Rule 57 provides that the remedy may be granted at
the commencement of the action or at any time thereafter. However, the writ does not bind and
affect the defendant until and unless jurisdiction over his person is eventually obtained by the
court. Hence, when the summons, together with a copy of the complaint, the writ of preliminary
attachment and a copy of the attachment bond, was served on the defendant, the sheriff validly
attached properties belonging to Summa, Inc. [Davao Light & Power Co., Inc. vs. Court of Appeals,
204 SCRA 343; Cuartero vs. Court of Appeals. 212 SCRA 260)
c. Rule on prior or contemporaneous service of summons
Q: In a case for sum of money, the trial court granted ex-parte the prayer for issuance of a
writ of preliminary attachment. The writ was immediately implemented by the sheriff. The
defendant filed a motion to discharge the writ of preliminary attachment on the ground that
it was issued and implemented prior to service of summons. Plaintiffs opposed arguing that
under the Rules of Court, the writ can be applied for and granted at the commencement of
the action or at any time thereafter. In any event, plaintiff argues that the summons which
was eventually served cured whatever irregularities that might have attended the
enforcement of the writ.
How would you rule on the conflicting contentions of the parties? (1996 Bar Question)
Answer:
The issuance of the writ of preliminary attachment ex-parte was valid but the
implementation thereof was not effective without the service of summons. The subsequent service
of summons did not cure the irregularities that attended the enforcement of the writ. The writ of
attachment should be re-served after the service of summons. (Davao Light and Power Co., Inc. Vs.
152
Court of Appeals, 204 -SCRA 343; Onate vs. Abrogar, 241 SCRA 659)
d. Manner of attaching real and personal property; when property attached is claimed by
third person
Q: After his properties were attached, defendant Porfirio filed a sufficient counterbond. The
trial court discharged the attachment. Nonetheless, Porfirio suffered substantial prejudice
due to the unwarranted attachment. In the end, the trial court rendered a judgement in
Porfirios favor by ordering the plaintiff to pay damages because the plaintiff was not
entitled to the attachment. Porfirio moved to charge the plaintiffs attachment bond. The
plaintiff and his sureties opposed the motion, claiming that the filing of the counterbond had
relieved the plaintiffs attachment bond from all liability for the damages. Rule on Porfirios
motion. (4%) (2008 Bar Question)
SUGGESTED ANSWER:
Porfirios motion to charge plaintiffs attachment bond is proper and can be granted. It is not
correct to contend that Porfirios filing of a counterbond constitutes a waiver of his right to proceed
against the attachment bond for the damages he suffered from the unwarranted attachment. It is a
condition inter alia of the applicants attachment bond that he will pay all the costs which may be
adjudged to the adverse party and all damages which the latter may sustain by reason of the
attachment, if the court shall finally adjudge that the applicant was not entitled thereto (Sec. 4, Rule
57, Rules of Court; D.M. Wenceslao and Associates, Inc. v. Ready con Trading and Construction
Corp., 433 SCRA 251 [2004]).
Q: Katy filed an action against Tyrone for collection of the sum of P1 Million in the Regional
Trial Court, with an ex-parte application for a writ of preliminary attachment. Upon posting
of an attachment bond, the court granted the application and issued a writ of preliminary
attachment.
Apprehensive that Tyrone might withdraw his savings deposit with the bank, the sheriff
immediately served a notice of garnishment on the bank to implement tire writ of
preliminary attachment. The following day, the sheriff proceeded to Tyrones house and
served him the summons, with copies of the complaint containing the application for writ of
preliminary attachment, Katys affidavit, order of attachment, writ of preliminary
attachment and attachment bond.
Within fifteen (15 days) days from service of the summons, Tyrone filed a motion to dismiss
and to dissolve the write of preliminary' attachment on the following grounds: (i) the court
did not acquire jurisdiction over his person because the writ was served ahead of the
summons; (ii) the writ was improperly implemented; and (iii) said writ was improvidently
issued because the obligation in question was already fully paid.
SUGGESTED ANSWER:
(1)
The fact that the writ of attachment was served ahead of the summons did not affect the
jurisdiction of the court over the defendant. The effect is that the writ is not enforceable. (Sec. 5,
Rule 57, 1997 Rules of Civil Procedure.) But, as pointed out by jurisprudence, all that is needed to
be done is to re-serve the writ. (Onate v. Abrogar, 241 SCRA 659 [1985]).
153
(2)
The writ was improperly implemented. Serving a notice of garnishment, particularly before
summons is served, is not proper. What should be served on the defendant are a copy of the writ of
attachment and notice that the bank deposits are attached pursuant to the writ. (Sec. 7 [d]. Rule 57,
1997 Rules of Civil Procedure.)
(3)
The proper remedy where there is payment is a motion to dismiss under Section 1 (h) Rule
16. A motion to discharge on the ground that the writ was improvidently issued will not lie, since
such a motion would be tantamount to trial on the merits of the action which cannot be ventilated
at a mere hearing of the motion instead of a regular trial.. The writ is only ancillary to the main case.
( Sec. 13, Rule 57, 1997 Rules of Civil Procedure, Mindanao Savings Loans Assoc.. Inc. v. C.A., 172
SCRA 480 [1989]; Davao Light &. Power Co. v. Court of Appeals 204 SCRA 343 [1991]).
e. Satisfaction of judgment out of property attached
A.
The plaintiff obtained a writ of preliminary attachment upon a bond of PI million. The
writ was levied on the defendant1 s property, but it was discharged upon the posting by the
defendant of a counterbond in the same amount of P 1 million. After trial, the court rendered
judgment finding that the plaintiff had no cause of action against the defendant and that he
had sued out the writ of attachment maliciously. Accordingly, the court dismissed the
complaint and ordered the plaintiff and its surety to pay jointly to the defendant PI.5 million
as actual damages, P0.5 million as moral damages and P0.5 million as exemplary damages.
Evaluate the soundness of the judgment from the point of view of procedure. (5%)
B.
xxx
SUGGESTED ANSWER:
The judgment against the surety is not sound if due notice was not given to him of
the application for damages. (Rule 57, sec. 20).
A.
Moreover, the judgment against the surety cannot exceed the amount of its counterbond
of P1 million.
B.
xxx
Q: C, with D as bondsman, secured the attachment of the properties of defendant, X, who by

filing a counterbond, had the attachment dissolved.
Defendant X after judgment was rendered in his favor now holds D liable on his bond for the
damages he (X) suffered for the unwarranted suit and the wrongful and malicious
attachment.
D moves to dismiss the damage suit on the ground that the dissolution of the attachment
rendered the attachment bond void and ineffective under Sec. 12 of Rule 57, which provides
that upon the filing of the counterbond, the attachment is discharged or dissolved.
(a)
Decide the case with reasons.
(b)
Who may issue an order of attachment and what are the contents of such an
order?(1988 Bar Question)
154
Answer:
(a)
If the claim for damages was made in .the same action before the judgment became final
and executory, 1 would deny the motion to dismiss the claim for damages, because the dissolution
of the attachment by the filing of a counterbond does not invalidate the attachment bond, which
remains liable for damages suffered by reason of the wrongful attachment. (Calderon vs. IAC, Nov.
11, 1987; Del Rosario vs. Nava, 95 Phil. 637).
However, if the claim for damages was made in a separate action (which the question seems to
imply because of the words damage suit), I would grant the motion to dismiss, because such a
claim can only be made in the same action. (Sec. 20 of Rule 57; Pioneer Insurance & Surety Co, vs.
Hontanosas, 78 SCRA 447).
(b)
An order of attachment may be granted by the judge of any court in which the action is
pending, or by a Justice of the Court of Appeals or the Supreme Court, and must require the sheriff
or other proper officer of the province to attach all the property of the party against whom it is
issued within the province not exempt from execution, or so much thereof as may be sufficient to
satisfy the applicants demand, the amount of which must be stated in the order, unless such party
makes deposit or gives bond as hereinafter provided in an amount sufficient to satisfy such
demand, besides costs, or in an amount equal to the value of the property which is about to be
attached. Several orders may be issued at the same time to the sheriffs or other proper offices of
different provinces (Sec. 2 of Rule 57)
4. Preliminary injunction
a. Definitions and differences: preliminary injunction and temporary restraining order;
status quo ante order
Q: Differentiate a TRO from a status quo order. 2% (2006 Bar Question)
SUGGESTED ANSWER:
A temporary restraining order is issued upon application of a party and upon the posting of
the required bond. On the other hand, a status quo order maybe issued motuproprio on equitable
considerations, and does not require the posting of a bond. Unlike a temporary restraining order or
a preliminary injunction, a status quo order is more fn the nature of a cease and desist order, since
it neither directs the doing or undoing of acts as in the case of prohibitory or mandatory injunctive
relief (Garcia v. Mojica, 314 SCRA 207(1999]).
Q: Distinguish between injunction as an ancillary remedy and injunction as a main action.
2.5% (2006 Bar Question)
SUGGESTED ANSWER:
Injunction as an ancillary remedy presupposes the existence of a principal or a main action
(Vallangca v. Court of Appeals, 1 73 SCRA 42 [1989]). Its main function is to preserve the status quo
until the merits can be heard and resolved (Urbanesv. Court of Appeals, 335 SCRA 537 120011).
On the other hand, an injunction as the main action is brought specifically to obtain a judgment
perpetually restraining or commanding the performance of an act after trial (Del Mar v. PAGCOR,
346 SCRA 485 [2000]).
155
b. Requisites
Q: What are the requisites for the issuance of (a) a writ of preliminary injunction; and (b) a
final writ of injunction? 2.5% (2006 Bar Question)
SUGGESTED ANSWER:
The requisites for the issuance of a writ of preliminary injunction are: (1) a right in esse or a
clear and unmistakable right to be protected; (2) a violation of that right; (3) that there is an urgent
and permanent act and urgent necessity for the writ to prevent serious damage (Tayag v. Lacson,
426 SCRA 282 [20041).
A final writ of injunction may be granted if after trial of the action, it appears that the applicant is
entitled to have the act or acts complained of permanently enjoined (Sec. 9, Rule 58 of the 1997
Revised Rules on Civil Procedure)
c. Kinds of injunction
d. When writ may be issued
a.
xxx
b.
May a writ of preliminary injunction be issued ex parte? Why? (2%)
SUGGESTED ANSWER:
a.
xxx
b.
No, a writ of preliminary Injunction may not be issued ex parte. As provided in the Rules,
no preliminary injunction shall be granted without hearing and prior notice to the party or person
sought to be enjoined. (Sec. 5 of Rule 58, 1997 Rules of Civil Procedure) The reason is that a
preliminary injunction may cause grave and irreparable injury to the party enjoined.
Q: May a Regional Trial Court issue injunction without bond? 2% (2006 Bar Question)
SUGGESTED ANSWER:
Yes, if the injunction issued is a final injunction. Generally, however, a preliminary
injunction may not be issued without the posting of a bond, unless exempted by the trial court (Rule
58, sec. 4 [b], 1997 Revised Rules of Civil Procedure) or otherwise provided for by law.
Q: An application for a writ of preliminary injunction with a prayer for a temporary
restraining order is included in a complaint and filed in a multi-sala Regional Trial Court
consisting of Branches 1,2.3, and 4. Being urgent in nature, the Executive Judge, who was
sitting in Branch 1, upon the filing of the aforesaid application immediately raffled the case
in the presence of the judges of Branches 2,3 and 4. The case was raffled to Branch 4 and the
judge thereof Immediately Issued a temporary restraining order.
Is the temporary restraining order valid? Why? (5%) (2001 Bar Question)
SUGGESTED ANSWER:
156
No. It is only the Executive Judge who can issue immediately a temporary restraining order
effective only for seventy-two (72) hours from issuance. No other Judge has the right or power to
issue a temporary restraining order ex parte. The Judge to whom the case is assigned will then
conduct a summary hearing to determine whether the temporary restraining order shall be
extended, but in no case beyond 20 days, including the original 72- hour period. (Sec 5 of Rule 58,
1997 Rules of Civil Procedure)
ALTERNATIVE ANSWER:
The temporary restraining order is not valid because the question does not state that the
matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury.
(Sec. 5 of Rule 58, 1997 Rules of Civil Procedure)
e. Grounds for issuance of preliminary injunction
Q: Can a suit for injunction be aptly filed with the Supreme Court to stop the President of the
Philippines from entering into a peace agreement with the National Democratic Front?
(2003 Bar Question)
SUGGESTED ANSWER:
No, a suit for injunction cannot aptly be filed with the Supreme Court to stop the President
of the Philippines from entering into a peace agreement with the National Democratic Front, which
is a purely political question. (Madarang v. Santamaria, 37 Phil. 304 [1917]). The President of the
Philippines is immune from suit.
Q: ABC Cattle Corporation is the holder of a pasture lease agreement since 1990 covering
1.000 hectares of pasture land surrounded with fences. In 1992. D was issued a pasture lease
agreement covering 930 hectares of land adjacent to ABCs. A relocation survey showed that
the boundaries of Ds land extended 580 hectares into ABCs pasture land. Thereupon, D
removed ABCs fence and started to set up his own boundary fence 580 hectares into ABCs
pasture area. As ABC persistently blocked Ds advances into its property, D filed a complaint
with preliminary injunction to enjoin ABC from restricting him in the exercise of his lease
rights.
If you were the judge, would you issue a preliminary injunction? Explain. (1996 Bar
Question)
Answer:
No, because a preliminary injunction may not be issued to take property out of the
possession and control of one party and place it in the countrol of another whose right has not been
clearly established.
f. Duration of a Temporary Restraining Order (TRO)
Q: Define a temporary restraining order (TRO). 2% (2006 Bar Question)
SUGGESTED ANSWER:
157
A temporary restraining order is an interlocutory order issued to preserve the status quo,
and is granted to a party until the hearing of the application for preliminary injunction (Sec. 5, par.
2, Rule 58 of the 1997 Rules of Civil Procedure).
Q: What is the duration of a TRO issued by the Executive Judge of a Regional Trial Court? 2%
(2006 Bar Question)
SUGGESTED ANSWER:
The duration of the TRO issued by the executive judge of a Regional Trial Court is seventytwo (72) hours from issuance, which is issued only if the matter is of extreme urgency and the
applicant will suffer grave injustice and irreparable injury, and the duration of the TRO issued by
him as the judge assigned to the case, may be effective for a total of twenty (20) days, including the
original period of 72 hours.
(a)
What is a Temporary Restraining Order (TRO)?
Answer:
(a)
A Temporary Restraining Order is an order to maintain the subject of the controversy in
status quo until hearing of an application for preliminary injunction can be held. (Board of
Transportation vs. Castro, 125 SCRA 410)
(b)
How does it differ from a Writ of Preliminary Injunction?
Answer:
(b)
A Writ of Preliminary Injunction cannot be granted without notice to the defendant or
adverse party, whereas a Temporary Restraining Order may be issued if it shall appear from the
facts shown by affidavits or by the verified complaint that great and irreparable injury would result
to the applicant before the matter can be heard on notice. (BP 224)
A Writ of Preliminary Injunction requires a bond to be filed by the applicant (Sec. 4 of Rule 58),
whereas a Temporary Restraining Order does not.
(c)
What is the duration of a Temporary Restraining Order (TRO) issued by (i) a Regional
Trial Court, (ii) the Court of Appeals, (iii) the Supreme Court?
Answer:
(c)
Duration of a Temporary Restraining Order issued by:

1)
Regional Trial Court 20 days (BP 224)
2)
Court of Appeals20 days (Delbros Corp. vs. IAC, April 12,1988)
3)
Supreme Courtno time limit.
Q: May a justice of a Division of the Court of Appeals issue a TRO? 2% (2006 Bar Question)
SUGGESTED ANSWER:
158
Yes, a Justice of a Division of the Court of Appeals may issue a TRO, as authorized under
Rule 58 and by Section 5, Rule IV of the IRCA which additionally requires that the action shall be
submitted on the next working day to the absent members of the division for their ratification,
modification or recall (Heirs of the late Justice Jose B.L. Reyes v. Court of Appeals, 338 SCRA 282
[2000]).
Q: What is the life span of a temporary restraining order issued by a trial court? May this life
span be extended? Explain fully. (1989 Bar Question)
Answer:
The lifespan of a restraining order is twenty days. This life span may not be extended.
A preliminary injunction may no longer be granted without notice to the adverse party.
However, if it appears that great or irreparable injury would result to the applicant before his
application for preliminary injunction could be heard on notice, the judge may issue a temporary
restraining order with a limited life span of twenty days from date of issue. If no preliminary
injunction is granted within said period, the temporary restraining order would automatically
expire on the 20th day. If before the expiration of the 20-day period, the application for preliminary
injunction is denied, the temporary restraining order would also be deemed automatically deemed
vacated. (Sec. 5 of Rule 5 as amended by BP 224; Dionisio vs. CFI of South Cotabatoy 124 SCRA
222).
5. Receivership
a. Cases when receiver may be appointed
Q: Joaquin filed a complaint against Jose for the foreclosure of a mortgage of a furniture
factory with a large number of machinery and equipment. During the pendency of the
foreclosure suit, Joaquin learned from reliable sources that Jose was quietly and gradually
disposing of some of his machinery and equipment to a businessman friend who was also
engaged In furniture manufacturing such that from confirmed reports Joaquin gathered, the
machinery and equipment left with Jose were no longer sufficient to answer for the latter is
mortgage indebtedness. In the meantime, judgment was rendered by the court In favor of
Joaquin but the same is not yet final.
Knowing what Jose has been doing, if you were Joaquin's lawyer, what action would you take
to preserve whatever remaining machinery and equipment are left with Jose? Why? (5%)
(2001 Bar Question)
SUGGESTED ANSWER:
To preserve whatever remaining machinery and equipment are left with Jose, Joaquin's
lawyer should file a verified application for the appointment by the court of one or more receivers.
The Rules provide that receivership is proper in an action by the mortgagee for the foreclosure of a
mortgage when it appears that the property is in danger of being wasted or dissipated or materially
injured and that its value is probably insufficient to discharge the mortgage debt. (Sec. l[b] of Rule
59, 1997 Rules of Civil Procedure).
6. Replevin
159
a.
xxx
b.
xxx
c.
What is replevin? (2%)
SUGGESTEDANSWER:
a.
xxx
b.
xxx
c.
Replevin or delivery of personal property consists in the delivery, by order of the court, of
personal property by the defendant to the plaintiff, upon the filing of a bond. (Calo v. Roldan, 76
Phil. 445 [1946])
a. When may writ be issued
b. Requisites
c. Affidavit and bond; redelivery bond
Q: A sold five thousand piculs of sugar to B. payable on demand. Upon delivery of the sugar to
B, however, the latter did not pay its purchase price. After the lapse of sometime from the
date of delivery of the sugar to B, A brought an action for the recission of the contract of sale
and as incident of this action, asked for the manual delivery (replevin) of the sugar to him.
May the remedy of replevin prayed for by A be granted? Explain. (1996 Bar Question)
Answer:
Yes, because A is entitled to recover possession of the sugar upon the filing of the necessary
affidavit and bond in double the value of the property.
Alternative Answer:
No, because A must stale in his affidavit that he is the owner of the properly claimed or
entitled to the possession thereof. Upon delivery of the sugar to B, ownership thereof was
transferred to him. The failure of B to pay the purchase price did not affect the transfer of
ownership. Since A is not the owner of the sugar, replevin should not be granted.
Q: Mia obtained a loan to buy machineries for her garment business. She executed a chattel
mortgage over said machineries. Due to business reverses, she defaulted in the payment of
her obligation. Mario, the mortgagee, sought the delivery of the machineries so that they can
be sold at foreclosure sale but Mia refused, contending that it would result in the stoppage of
her business. Mario seeks your advice regarding his problem. What is your legal opinion on
the matter? (1989 Bar Question)
Answer:
I would advise Mario either to file an action for recovery of said machineries with an application
for a writ of replevin or delivery of personal property upon the filing of a bond double the value
thereof as a preliminary step to an extrajudicial foreclosure, or to file an action of judicial
foreclosure of chattel mortgage. (Northern Motors, Inc. vs. Herrera, 49 SCRA 392; Rule 6Cf; Sec. 8 of
Rule 68). Inasmuch as Mia executed a chattel mortgage, over said machineries, she would be
160
estopped from opposing the writ of replevin on the ground that only personal property may be
subject thereof. (Makati Leasig and Finance Corp. vs. Wearever Textile Mills, Inc., 122 SCRA 296)
d. Sheriffs duty in the implementation of the writ; when property is claimed by third party
Q: A obtained a judgment for money against B. The sheriff enforcing the corresponding
writ went to C who, is the pledgee of a ring B had given as security for a loan and insisted
on taking possession of the ring for the purpose of eventually selling it at the execution sale
to satisfy the judgment debt of B to A.
Has C the obligation to surrender the ring to the sheriff? Explain. (1988 Bar Question)
Answer:
No. C has no obligation to surrender the ring to the sheriff because C has the right to
retain the ring in his possession until the loan is paid. (Art, 2098 CivU Code) If the sheriff should
take possession of the ring, C may file a third-party claim.
S. Special civil actions
1. Interpleader (Requisites for interpleader, When to file)
1.
What is an action for interpleader? [12%]
SUGGESTEDANSWER:
1.
An action for interpleader is a special civil action which is filed whenever conflicting claims
upon the same subject matter are or may be made against a person who claims no Interest
whatever In the subject matter, or an Interest which in whole, or In part is not disputed by the
claimants, in which case, he may bring the action against the conflicting claimants to compel them
to interplead and litigate their several claims among themselves. (Sec. 1, Rule 62, 1997 Rules of Civil
Procedure.)
Q: A lost the cashiers check she purchased from XYZ Bank. Upon being notified of the loss.
XYZ Bank immediately issued a STOP PAYMENT order. Here comes B trying to encash that
same cashier's check but XYZ Bank refused payment.
As precautionary measure, what remedy may XYZ Bank avail of with respect to the
conflicting claims of A and B over the cashiers check? Explain. (1996 Bar Question)
Answer:
XYZ Bank may file a complaint for interpleader so that the court may resolve the conflicting
claims of A and B over the cashiers check.
Q: LTA, Inc. is the lessee of a building owned by Mr. Tenorio paying rental of P10,000.00 a
month. The owner died on May 10, 1988 and since then, LTA has not paid the monthly
rentals, now amounting to P40,000.00, because two women are both claiming to be widows
of Tenorio and are demanding the rental payments.
161
What legal action may LTAs counsel take,'-before what court, and against whom to protect
LTAs interests? Explain. (1988 Bar Question)
Answer:
LTAs counsel should file a complaint for interpleader against the two women claiming to be
widows of Tenorio before the Regional Trial Court so that said court may determine who is entitled
to the rental payments. The Regional Trial Court has jurisdiction because the amount involved is
P40,000.00.
2. Declaratory reliefs and similar remedies
a. When court may refuse to make judicial declaration
1.
xxx
2.
A student flies action for declaratory relief against his school to determine whether
he deserves to graduate with Latin honors. Is this action tenable? [3%]
SUGGESTEDANSWER:
1.
xxx
2.
No. The action for declaratory relief is not tenable. Whether the student deserves to
graduate with ; Latin honors does not fall within the matters subject to declaratory relief, namely, a
deed, will contract or other written instrument, or a statute, executive order or regulation,
ordinance, or any other governmental regulation. (Sec. 1 of Rule 63, 1997 Rules of Civil Procedure.)
3. Review of judgments and final orders or resolution of the Comelec and COA
a. Application of Rule 65 under Rule 64
A.
What are the modes of appeal to the Supreme Court? (2%)
B.
xxx
SUGGESTED ANSWER:
A.
The modes of appeal to the Supreme Court are:
(a) appeal by certiorari on pure questions of law under Rule 45 through a petition
for review on certiorari; and
(b) ordinary appeal in criminal cases through a notice of appeal from convictions
imposing reclusion perpetua or life imprisonment or where a lesser penalty Is involved but
for offenses committed on the same occasion or which arose out of the same occurrence
that gave rise to the more serious offense. (Rule 122, sec. 3) Convictions imposing the
death penalty are elevated through automatic review.
b. Distinction in the application of Rule 65 to judgments of the Comelec and COA and the
application of Rule 65 to other tribunals, persons and officers
162
a.
xxx
b.
xxx
c.
As a mode of review of the decisions of the National Labor Relations Commission and
the Constitutional Commissions. 2.5%
SUGGESTED ANSWER:
The mode of review of the decision of the NLRC is via a special civil action for certiorari
under Rule 65, but pursuant to the hierarchy of the courts enunciated in the case of St. Martins
Funeral Homes v. NLRC, 295 SCRA 494 (1998), the same should be filed in the Court of Appeals.
The mode of review of the decisions of two Constitutional Commissions, the Commission on
Elections and the Commission on Audit, as provided under Rule 64 of the 1997 Revised Rules of
Civil Procedure/ is a special civil action for certiorari under Rule 65. Decisions of the Civil Service
Commission, however, are reviewable by petition for review to be filed with the Court of Appeals
under Rule 43 of the 1997 Revised Rules of Civil Procedure.
4. Certiorari, prohibition and mandamus
a. Definitions and distinctions
i. Certiorari distinguished from appeal by certiorari
Q: Differentiate certiorari as an original action from certiorari as a mode of appeal. (3%)
SUGGESTED ANSWER:
1.
Certiorari as an original action and certiorari as a mode of appeal may be distinguished
as follows:
a.
The first is a special civil action under Rule 65 of the Rules of Court, while the
second is an appeal to the Supreme Court from the Court of Appeals, Sandiganbayan
and the Regional Trial Court under Rule 45.
b.
The first can be filed only on the grounds of lack or excess of jurisdiction or grave
abuse of discretion tantamount to lack or excess of jurisdiction, while the second is
based on the errors of law of the lower court.
c.
The first should be filed within sixty (60) days from notice of the judgment, order or
resolution sought to be assailed (Sec. 4, Rule 65). while the second should be filed
within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioners motion for new trial or reconsideration filed in due time after notice of the judgment. (Sec. 2, Rule 45, 1997 Rules
d.
The first cannot generally be availed of as a substitute for a lost appeal under Rules
40. 41, 42, 43 and 45.
e.
Under the first, the lower court is impleaded as a party respondent (Sec. 5 of Rule
65), while under the second, the lower court is not impleaded. (Sec. 4 of Rule of 45)
b. When petition for certiorari, prohibition and mandamus is proper
163
Q: After reviewing the record of a preliminary investigation of a homicide case, the Secretary
of Justice reversed the resolution of the Provincial Prosecutor and directed the latter to
move for the dismissal of the Information which had been filed in the Regional Trial Court of
Pasig. The Provincial Prosecutor thus filed such motion. (1991 Bar Question)
(a)
May the RTC judge refuse to order the dismissal of the criminal case and insist on the
arraignment and trial of the accused?
Answer:
(a)
Yes. Upon the filing of the information, the court acquires jurisdiction over the criminal
action. The subsequent filing of a motion for dismissal, even upon the direction of the Secretary of
Justice, is addressed for the consideration of the court, and the court in the exercise of its discretion
may grant the motion or deny it and require the arraignment and trial of the accused to proceed.
(Crespo v. Mogul, 151 SCRA 462).
(b)
If the judge refuses to grant the Provincial Prosecutor's motion to dismiss, may a special
civil action for mandamus lie to compel the Judge to grant the motion?
Alternative Answer:
(a)
No, mandamus will not lie because the court has discretion whether to grant or deny the
motion.
Q: L was charged with illegal possession of shabu before the RTC. Although bail was
allowable under his indictment, he could not afford to post bail, and so he remained in
detention at the City Jail. For various reasons ranging from the promotion of the Presiding
Judge, to the absence of the trial prosecutor, and to the lack of notice to the City Jail Warden,
the arraignment of L was postponed nineteen times over a period of two years. Twice during
that period, Ls counsel filed motions to dismiss, invoking the right of the accused to a speedy
trial. Both motions were denied by the RTC. Can L file a petition for mandamus? Reason
briefly. (2007 Bar Question)
SUGGESTED ANSWER:
Yes, L can file a petition for mandamus to enforce his ' "institutional right to a speedy trial
which was capriciously denied to him.
There is absolutely no justification for postponing an arraignment of the accused nineteen
(19) times and over a period of two (2) years. The numerous, unreasonable postponements of the
arraignment demonstrate an abusive exercise of discretion (Lumanlaw v. Peralta, 482 SCRA 396
[2006]). Arraignment of an accused would not take thirty minutes of the precious time of the court,
as against the preventive imprisonment and deprivation of liberty of the accused just because he
does not have the means to post bail although the crime charged is bailable.
The right to a speedy trial is guaranteed by the Constitution to every citizen accused of a
crime, more so when he is under preventive imprisonment. L, in the given case, was merely
invoking his constitutional right when a motion to dismiss the case was twice filed by his counsel.
The RTC is virtually enjoined by the fundamental law to respect such right; hence a duty. Having
refused or neglected to discharge the duty enjoined by law whereas there is no appeal nor any
plain, speedy and adequate remedy in the ordinary course of law, the remedy of mandamus may be
164
availed of.
c. Exceptions to filing of motion for reconsideration before filing petition
Q: Is the failure to file a motion for reconsideration in the lower court as a condition
precedent for the granting of the writ of certiorari or prohibition always fatal? Explain.
(1996 Bar Question)
Answer:
No, because there are exceptions, such as the following:
a)
The question of jurisdiction was squarely raised before and decided by

respondent court.
the
b)
Public interest is involved
c)
Case of urgency
d)
Order is patent nullity
e)
Issue is purely of law
f)
Deprivation of right to due process (Cochingyan vs. Cloribel 76 SCRA 361: Palea vs.
PAL. Ill SCRA 215)
Q: Well-settled is the rule that before a petition for certiorari under Rule 65 of the Rules of
Court may be filed a motion for reconsideration must be filed to give an opportunity to the
judge to correct an error, if any. An ommission to. comply with this procedural requirement
justifies a denial of the writ applied for. When may a motion for reconsideration be
dispensed with? (1989 Bar Question)
Answer:
A motion for reconsideration may be dispensed with in the following cases:
(1)
Where the question of jurisdiction has been squarely raised, argued before, submitted to,
and met and decided by the respondent court;
(2)
Where the questioned order is a patent nullity;
(3)
Where there is a deprivation of the fundamental right to due process. (Cochingyan vs. Cloribel, supra).
Another acceptable Answer:
1)
Where the issue is purely of law
2)
Where public interest is involved;
3)
In cases of urgency. (PALEA vs. PAL, 111 SCRA 215).
d. Effects of filing of an unmeritorious petition

165
a.
When is an appeal from the Regional Trial Court to the Court of Appeals deemed
perfected? (2%)
b.
XXX received a copy of the RTC decision on June 9, 1999; YYY received it on the next
day, June 10, 1999. XXX filed a Notice of Appeal on June 15, 1999. The parties entered into a
compromise on June 16, 1999. On June 13, 1999, YYY, who did not appeal, filed with the RTC
a/notion for approval of the Compromise Agreement. XXX changed his mind and opposed
the motion on the ground that the RTC has no more jurisdiction. Rule on the motion
assuming that the records have not yet been forwarded to the CA. (2%)
SUGGESTED ANSWER:
a.
An appeal from the Regional Trial Court to the Court of Appeals is deemed perfected as to
the appellant upon the filing of a notice of appeal in the Regional Trial Court in due time .or within
the reglementary period of appeal. An appeal by record on appeal is deemed perfected as to the
appellant with respect to the subject matter thereof upon the approval of the record on appeal filed
in due time. (Sec. 9, Rule 41 of the 1997 Rules)
b.
The contention of XXX that the RTC has no more jurisdiction over the case is not correct
because at the time that the motion to approve the compromise had been filed, the period of appeal
of YYY had not yet expired. Besides, even if that period had already expired, the records of the case
had not yet been forwarded to the Court of Appeals. The rules provide that in appeals by notice of
appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time
and the expiration of the time to appeal of the other parties. (Sec. 9, third par. Rule 41 of the 1997
Rules) The rules also provide that prior to the transmittal of the record, the court may, among
others, approve compromises. (Sec. 9, fifth par., Rule 41 of the 1997 Rules)
(Note: June 13, the date of the filing of the motion for approval of the Compromise Agreement,
appears to be a clerical error.)
a.
As a mode of appeal from the Regional Trial Court or the Court of Appeals to the
Supreme Court. 2.5%
SUGGESTED ANSWER:
A petition for review on certiorari under Rule 45 of the 1997 Revised Rules on Civil
Procedure is a mode of appeal on pure questions law from a judgment or final order or resolution of
the Court of Appeals or the Regional Court to the Supreme Court.
b.
As a special civil action from the Regional Trial 2ourt or the Court of Appeals to the
Supreme Court. 2.5%
SUGGESTED ANSWER:
A special civil action for certiorari under Rule 65 of the 1997 Revised Rules of Civil
Procedure, is an original action from the Regional Trial "Court or the Court of Appeals to the
Supreme Court against any tribunal, board or officer exercising judicial or quasi-judicial functions
raising the issue of lack or excess of jurisdiction or grave abuse of discretion amounting to lack or
excess of jurisdiction, there being no appeal or any plain, speedy and adequate remedy in the
ordinary course of law.
166
c.
As a mode of review of the decisions of the National Labor Relations Commission and
the Constitutional Commissions. 2.5%
SUGGESTED ANSWER:
The mode of review of the decision of the NLRC is via a special civil action for certiorari
under Rule 65, but pursuant to the hierarchy of the courts enunciated in the case of St. Martins
Funeral Homes v. NLRC, 295 SCRA 494 (1998), the same should be filed in the Court of Appeals.
The mode of review of the decisions of two Constitutional Commissions, the Commission on
Elections and the Commission on Audit, as provided under Rule 64 of the 1997 Revised Rules of
Civil Procedure/ is a special civil action for certiorari under Rule 65. Decisions of the Civil Service
Commission, however, are reviewable by petition for review to be filed with the Court of Appeals
under Rule 43 of the 1997 Revised Rules of Civil Procedure.
Q: May the aggrieved party file a petition for certiorari in the Supreme Court under Rule 65 of
the 1997 Rules of Civil Procedure instead of filing a petition for review on certiorari under
Rule 45 thereof for the nullification of a decision of the Court of Appeals in the exercise
either of its original or appellate jurisdiction? Explain. (2005 Bar Question)
SUGGESTED ANSWER:
The remedy to nullify a decision of the Court of Appeals is a petition for review on certiorari
in the Supreme Court under Rule 45, instead of a petition for certiorari under Rule 65, except in
certain exceptional circumstances such as where appeal is inadequate. By settled jurisprudence,
certiorari is not a substitute for a lost appeal.
Q: Compare the certiorari jurisdiction of the Supreme Court under the Constitution with that
under Rule 65 of the Rules of Civil Procedure. (4%) (2008 Bar Question)
SUGGESTED ANSWER:
Under the Constitution, the certiorari jurisdiction of the Supreme Court provides for its
expanded jurisdiction power of judicial power over [governs] all branches or instrumentalities of
the government where is a grave abuse of discretion amounting to lack or excess of jurisdiction, as
[agencies and instrumentalities] provided in Section 1, second par., Art. VIII of the 1987
Constitution. The petition is filed under Rule 45 of the Rules of Court, and [The writ is directed not
only to tribunal, board or officer exercising judicial or quasi-judicial functions. And] the period fixed
for availing of the remedy is within 30 days from receipt of the copy of the decision, order or ruling
in question (Sec. 7, Art. IX).
But under Rule 65 of the Rules of Court, the certiorari jurisdiction of the Supreme Court is
limited to acts done without or in excess of jurisdiction or grave abuse of discretion amounting to
lack or excess of jurisdiction, by a tribunal, board or officer exercising judicial or quasi- judicial
functions only. And the period fixed for availing of the remedy is not later than 60 days from notice
of judgment; order or resolution in question (Secs. 1 and 4, Rule 65, Rules of Court).
Q: In 1996, Congress passed Republic Act No. 8189, otherwise known as the Voters
Registration Act of 1996, providing for computerization of elections. Pursuant thereto, the
COMELEC approved the Voters Registration and Identification System (VRIS) Project. It
167
issued imitations to pre-qualify and bid for the project. After the public bidding, Fotokina
was declared the winning bidder with a bid of P6 Billion and was issued a Notice of Award.
But COMELEC Chairman Gener Go objected to the award on the ground that under the
Appropriations Act, the budget for the COMELECs modernization is only PI Billion. He
announced to the public that the VRIS project has been set aside. Two Commissioners sided
with Chairman Go, but the majority voted to uphold the contract.
Meanwhile, Fotokina filed with the RTC a petition for mandamus to compel the COMELEC to
implement the contract. The Office of the Solicitor General (OSG), representing Chairman Go,
opposed the petition on the ground that mandamus does not lie to enforce contractual
obligations. During the proceedings, the majority Commissioners filed a manifestation that
Chairman Go was not authorized by the COMELEC En Banc to oppose the petition. (2006 Bar
Question)
1.
May the OSG represent Chairman Go before the RTC notwithstanding that his
position is contrary to that of the majority? 5%
SUGGESTED ANSWER:
Yes, the Office of the Solicitor General can represent Chairman Go before the Regional Trial
Court. The OSG is an independent office. Its hands are not shackled to the cause of its client agency.
In the discharge of its task, the primordial concern of the OSG is to see to it that the best interests of
the government is upheld (COMELEC v. Quijano-Padilla, 389 SCRA 353 12002ff.
2.
Is a petition for mandamus an appropriate remedy to enforce contractual
obligations? 5%
SUGGESTED ANSWER:
No, the COMELEC cannot be compelled by a writ of mandamus to discharge a duty that
involves the exercise of judgment and discretion, especially where disbursement of public funds is
concerned (COMELEC v. Quijano-Padilla, (supra) and other cases.)
Q: The defendant was declared in default in the RTC for his failure to file an answer to a
complaint for a sum of money. On the basis of the plaintiffs ex parte presentation of
evidence, judgment by default was rendered against the defendant. The default judgment
was served on the defendant on October 1, 2001. On October 10, 2001, he filed a verified
motion to lift the order of default and to set aside the judgment. In his motion, the defendant
alleged that, immediately upon receipt of the summons, he saw the plaintiff and confronted
him with his receipt evidencing his payment and that the plaintiff assured him that he would
instruct his lawyer to withdraw the complaint. The trial court denied the defendants motion
because it was not accompanied by an affidavit of merit. The defendant filed a special civil
action for certiorari under Rule 65 challenging the denial order.
A.
Is certiorari under Rule 65 the proper remedy? Why? (2%)
B.
Did the trial court abuse its discretion or act without or in excess of its jurisdiction in
denying the defendant's motion to lift the order of default and to set aside the default
judgment? Why? (3%) (2002 Bar Question)
SUGGESTED ANSWER:
A.
The petition for certiorari under Rule 65 filed by the defendant is the proper remedy
168
because appeal is not a plain, speedy and adequate remedy in the ordinary course of law in appeal,
the defendant in default can only question the decision in the light of the evidence of the plaintiff.
The defendant cannot invoke the receipt to prove payment of his obligation to the plaintiff.
ALTERNATIVE ANSWER:
Under ordinary circumstances, the proper remedy of a party wrongly declared in default is
either to appeal from the judgment by default or to file a petition for relief from judgment [Jeo, Inc.
v. Court of Appeals, 251 SCRA3S1 (1995)].
SUGGESTED ANSWER:
B.
Yes, the trial court gravely abused its discretion or acted without or in excess of jurisdiction
in denying the defendants motion because it was not accompanied by a separate affidavit of merit,
in his verified motion to lift the order of default and to set aside the judgment, the defendant alleged
that immediately upon receipt of the summons, he saw the plaintiff and confronted him with his
receipt showing payment and that the plaintiff assured him that he would instruct his lawyer to
withdraw the complaint Since the good defense of the defendant was already incorporated in the
verified motion, there was no need for a separate affidavit of merit [Capuz v. Court of Appeals, 233
SCRA 471 (1994); Mago v. Court of Appeals, 303 SCRA 600 (1999)]
5. Quo Warranto
Q: A group of businessmen formed an association In Cebu City calling Itself Cars Co. to
distribute/sell cars in said city. It did not Incorporate itself under the law nor did it have any
government permit or license to conduct its business as such. The Solicitor General filed
before a Regional Trial Court in Manila a verified petition for quo warranto questioning and
seeking to stop the operations of Cars Co. The latter filed a motion to dismiss the petition on
the ground of improper venue claiming that its main office and operations are In Cebu city
and not in Manila.
Is the contention of Cars Co. correct? Why? (5%) (2001 Bar Question)
SUGGESTED ANSWER:
No. As expressly provided in the Rules, when the Solicitor General commences the action for
quo warranto, it may be brought in a Regional Trial Court in the City of Manila, as in this case, in the
Court of Appeals or in the Supreme Court. (Sec. 7 of Rule 66, 1997 Rules of Civil Procedure)
a. Judgment in quo warranto action
Q: Petitioner Fabian was appointed Election Registrar of the Municipality of Sevilla
supposedly to replace the respondent Election Registrar Pablo who was transferred to
another municipality without his consent and who refused to accept his aforesaid transfer,
much less to vacate his position in Bogo town as election registrar, as in fact he continued to
occupy his aforesaid position and exercise his functions thereto. Petitioner Fabian then filed
a petition for mandamus against Pablo but the trial court dismissed Fabians petition
contending that quo warranto is the proper remedy.
Is the court correct in its ruling? Why? (5%) (2001 Bar Question)
169
SUGGESTED ANSWER:
Yes, the court is correct in its ruling. Mandamus will not lie. This remedy applies only where
petitioner's right is founded clearly in law, not when it is doubtful. Pablo was transferred without
his consent which is tantamount to removal without cause, contrary to the fundamental guarantee
on non-removal except for cause. Considering that Pedro continued to occupy the disputed position
and exercise his functions therein, the proper remedy is quo warranto, not mandamus. [Garces v.
Court of Appeals, 259 SCRA 99 (1996)]
ALTERNATIVE ANSWER:
Yes, the court is correct in its ruling. Mandamus lies when the respondent unlawfully
excludes another from the use and enjoyment of a right or office to which such other is entitled.
(Sec. 3, Rule 65) In this case, Pablo has not unlawfully excluded Fabian from the Office of Election
Registrar. The remedy of Fabian is to file an action of quo warranto in his name against Pablo for
usurping the office. (Sec. 5, Rule 66)
6. Expropriation
a. When plaintiff can immediately enter into possession of the real property, in relation to
R.A. No. 8974
Q: The Republic of the Philippines, through the Department of Public Works and Highways
(DPWH) filed with the RTC a complaint for the expropriation of the parcel of land owned by
Jovito. The land is to be used as an extension of the national highway. Attached to the
complaint is a bank certificate showing that there is, on deposit with the Land Bank of the
Philippines, an amount equivalent to the assessed value of the property. Then DPWH filed a
motion for the issuance of a writ of possession. Jovito filed a motion to dismiss the complaint
on the ground that there are other properties which would better serve the purpose.
[a]
xxx
[b]
As judge, will you grant the writ of possession prayed for by DPWH? Explain. (3%)
(2009 Bar Question)
SUGGESTED ANSWER:
NO. The expropriation here is governed by Rep. Act No. 8974 which requires 100%
payment of the zonal value of the property as determined by the BIR, to be the amount deposited.
Before such deposit is made, the national government thru the DPWH has no right to take
possession of the property under expropriation.
b. Defenses and objections
Q: The Republic of the Philippines, through the Department of Public Works and Highways
(DPWH) filed with the RTC a complaint for the expropriation of the parcel of land owned by
Jovito. The land is to be used as an extension of the national highway. Attached to the
complaint is a bank certificate showing that there is, on deposit with the Land Bank of the
Philippines, an amount equivalent to the assessed value of the property. Then DPWH filed a
motion for the issuance of a writ of possession. Jovito filed a motion to dismiss the complaint
on the ground that there are other properties which would better serve the purpose.
170
[a]
Will Jovitos motion to dismiss prosper? Explain. (3%) (2009 Bar Question)
SUGGESTED ANSWER:
NO. The present Rule of Procedure governing expropriation (Rule 67), as amended by the
1997 Rules of Civil Procedure, requires the defendant to file an Answer, which must be filed on or
before the time stated in the summons. Defendants objections and defenses should be pleaded in
his Answer not in a motion.
c. Ascertainment of just compensation
Q: May Congress enact a law providing that a 5,000 square meter lot, a part of the UST
compound in Sampaloc, Manila, be expropriated for the construction of a park in honor of
former City Mayor Arsenio Lacson? As compensation to UST, the City of Manila shall deliver
its 5-hectare lot in Sta. Rosa, Laguna originally intended as a residential subdivision for the
Manila City Hall employees. Explain. 5% (2006 Bar Question)
SUGGESTED ANSWER:
Yes, Congress can enact a law to expropriate property, but it cannot limit just compensation.
The determination of just compensation is a judicial function and Congress may not supplant or
prevent the exercise of judicial discretion to determine just compensation (EPZA v. Dulay, 149
SCRA 305 [19871). Under Sec. 5, Rule 67 of the 1997 Revised Rules of Civil Procedure, the
ascertainment of just compensation requires the evaluation of three commissioners.
7. Foreclosure of real estate mortgage
a. Judgment on foreclosure for payment or sale
Q: A borrowed from the Development Bank of the Philippines (DBP) the amount of P1
million secured by the titled land of his friend B who, however, did not assume personal
liability for the loan. A defaulted and DBP filed an action for judicial foreclosure of the real
estate mortgage impleading A and B as defendants. In due course, the court rendered
judgment directing A to pay the outstanding account of p-j 5 million (principal plus interest)
to the bank. No appeal was taken by A on the Decision within the reglementary period. A
failed to pay the judgment debt within the period specified in the decision. Consequently, the
court ordered the foreclosure sale of the mortgaged land. In that foreclosure sale, the land
was sold to the DBP for P1.2 million. The sale was subsequently confirmed by the court, and
the confirmation of the sale was registered with the Registry of Deeds on 05 January
2002.
On 10 January 2003, the bank filed an ex-parte motion with the court for the issuance of a
writ of possession to oust B from the land. It also filed a deficiency claim for P800.000.00
against A and B. The deficiency claim was opposed by A and B.
(a)
Resolve the motion for the issuance of a writ of possession.
(b)
Resolve the deficiency claim of the bank. (2003 Bar Question)
SUGGESTED ANSWER:
(a)
In judicial foreclosure by banks such as DBP, the mortgagor or debtor whose real property
has been sold on foreclosure has the right to redeem the property sold within one year after the
sale (or registration of the sale). However, the purchaser at the auction sale has the right to obtain a
171
writ of possession after the finality of the order confirming the sale. (Sec. 3 of Rule 68; Sec. 47 of RA
8791. The General Banking Law of 2000.) The motion for writ of possession, however, cannot be
filed ex parte. There must be a notice of hearing.
(b)
The deficiency claim of the bank may be enforced against the mortgage debtor A, but it
cannot be enforced against B, the owner of the mortgaged property, who did not assume personal
liability for the loan.
b. Deficiency judgment (Instances when court cannot render deficiency judgment)
Q: A borrowed from the Development Bank of the Philippines (DBP) the amount of P1
million secured by the titled land of his friend B who, however, did not assume personal
liability for the loan. A defaulted and DBP filed an action for judicial foreclosure of the real
estate mortgage impleading A and B as defendants. In due course, the court rendered
judgment directing A to pay the outstanding account of p-j 5 million (principal plus interest)
to the bank. No appeal was taken by A on the Decision within the reglementary period. A
failed to pay the judgment debt within the period specified in the decision. Consequently, the
court ordered the foreclosure sale of the mortgaged land. In that foreclosure sale, the land
was sold to the DBP for P1.2 million. The sale was subsequently confirmed by the court, and
the confirmation of the sale was registered with the Registry of Deeds on 05 January
2002.
On 10 January 2003, the bank filed an ex-parte motion with the court for the issuance of a
writ of possession to oust B from the land. It also filed a deficiency claim for P800.000.00
against A and B. The deficiency claim was opposed by A and B.
a)
xxx
b)
Resolve the deficiency claim of the bank. (2003 Bar Question)
SUGGESTED ANSWER:
a)
xxx
b)
The deficiency claim of the bank may be enforced against the mortgage debtor A, but it
cannot be enforced against B, the owner of the mortgaged property, who did not assume personal
liability for the loan.
8. Partition
a. Matters to allege in the complaint for partition
Q: Linda and spouses Amulfo and Regina Ceres were coowners of a parcel of land. Linda died
intestate and without any issue. Ten (10) persons headed by Jocelyn, claiming to be the
collateral relatives of the deceased Linda, filed an action for partition with the Regional Trial
Court praying for the segregation of Lindas 1/2 share, submitting in support of their
petition the baptismal certificates of seven of the petitioners, a family bible belonging to
Linda in which the names of the petitioners have been entered, a photocopy of the birth
certificate of Jocelyn, and a certification of the local civil registrar that its office had been
completely razed by fire. The spouses Ceres refused to partition on the following grounds: 1)
the baptismal certificates of the parish priest are evidence only of the administration of the
172
sacrament of baptism and they do not prove filiation of the alleged collateral relatives of the
deceased; 2) entry in the family bible is hearsay; 3) the certification of the registrar on nonavailability of the records of birth does not prove filiation; 4) in partition cases where
filiation to the deceased is in dispute, prior and separate judicial declaration of heirship in a
settlement of estate proceedings is necessary; and 5) there is need for publication as real
property is involved. As counsel for Jocelyn and her co-petitioners, argue against the
objections of the spouses Ceres so as to convince the court to allow the partition. Discuss
each of the five (5) arguments briefly but completely. (10%) (2000 Bar Question)
SUGGESTED ANSWER:
(1)
The baptismal certificate can show filiation or prove pedigree. It is one of the other means
allowed under the Rules of Court and special laws to show pedigree. (Trinidad v. Court of Appeals,
289 SCRA 188 11998]; Heirs of Ignacio Conti v. Court of Appeals, 300 SCRA 34511998)).
(2)
Entries in the family bible may be received as evidence of pedigree. (Sec. 40, Rule 130,
Rules of Court).
(3)
The certification by the civil registrar of the non-availability of records is needed to justify
the presentation of secondary evidence, which is the photocopy of the birth certificate of Jocelyn.
(Heirs of Ignacio Conti v. Court of Appeals, supra.)
(4)
Declaration of heirship in a settlement proceeding is not necessary. It can be made in the
ordinary action for partition wherein the heirs are exercising the right pertaining to the decedent,
their predecessor-in-interest, to ask for partition as co-owners (Id.).
(5)
Even if real property is involved, no publication is necessary, because what is sought is the
mere segregation of Lindas share in the property. (Sec. 1 of Rule 69; Id.)
9. Forcible entry and unlawful detainer
a. Definitions and distinction
P15,000.00.
a)
May the Metropolitan Court proceed to try and decide the case including the claim of
P15,000.00? Explain.
b)
xxx
c)
How does unlawful detainer differ from forcible entry? (1988 Bar Question)
Answer:
a)
Yes, because the amount of the counterclaim, P15,000.00, is within the jurisdiction of the
Metropolitan Court which has also exclusive original jurisdiction over the unlawful detainer case.
(Agustin vs. Bocalan, 135 SCRA 340).
b)
xxx
c)
In unlawful detainer, the possession is legal at the beginning but subsequently becomes
illegal after the expiration or termination of the right to hold possession, whereas in forcible entry
the possession is illegal from the beginning because the entry was made by force, intimidation,
threat, strategy or stealth.
173
Q: Ben sold a parcel of land to Del with right to repurchase within one (1) year. Ben
remained in possession of the property. When Ben failed to repurchase the same, title was
consolidated in favor of Del. Despite demand, Ben refused to vacate the land, constraining
Del to file a complaint for unlawful detainer. In his defense, Ben averred that the case should
be dismissed because Del had never been in possession of the property. Is Ben correct?
SUGGESTED ANSWER:
No, Ben is not correct. In an action for unlawful detainer, it is not required that the plaintiff be in
prior physical possession of the land subject of the action. In this action by the vendee a retro
against a vendor a retro who refused to vacate the property even after title has been consolidated in
the vendee, the latter, in contemplation of law, steps into the shoes of the vendor and succeeds to
his rights and interest (PharmaIndusties, Inc. v. Hon. Pajarillaga, 100 SCRA 339[1980]; Maninang v.
Court of Appeals, 14 SCRA 525 [1999]).
b. How to stay the immediate execution of judgment
P15,000.00. (1988 Bar Question)
a)
xxx
b)
In case Lito is adjudged to vacate the leased premises and to pay the accrued rentals
in arrears, how can he stay the execution of the judgment?
c)
xxx
Answer:
a)
xxx
b)
Lito must appeal; file a supercede as bond in an amount equivalent to the rents, damages
and costs accruing down to the time of the judgment; and deposit with the Regional Trial Court the
amount of the reasonable value of the use and occupation of the premises for the preceding month
or period at the rate determined by the judgment, on or before the tenth day of each succeeding
month or period. (Sec. 8 of Rule 70)
c)
xxx
Q: Mike was renting an apartment unit in the building owned by Jonathan. When Mike failed
to pay six months rent, Jonathan filed an ejectment suit. The Municipal Trial Court (MTC)
rendered judgment in favor of Jonathan, who then filed a motion for the issuance of a writ of
execution. The MTC issued the writ. (2009 Bar Question)
[a]
How can Mike stay the execution of the MTC judgment? Explain. (2%)
SUGGESTED ANSWER:
Execution shall issue immediately upon motion, unless Mike (a) perfects his appeal to the
RTC, (b) files a sufficient supersedeas bond to pay the rents, damages and costs accruing up to the
174
time of the judgment appealed from, and (c) deposits monthly with the RTC during the pendency of
the appeal the amount of rent due from time to time (Rule 70, Sec. 19).
Mike appealed to the Regional Trial Court (RTC), which affirmed the MTC decision.
Mike then filed a petition for review with the Court of Appeals (CA). The CA dismissed the
petition on the ground that the sheriff had already executed the MTC decision and had
ejected Mike from the premises, thus rendering the appeal moot and academic. Is the CA
correct? Reasons. (3%)
[b]
SUGGESTED ANSWER:
NO, the Court of Appeals is not correct. The dismissal of the appeal is wrong, because the
execution of the RTC judgment is only in respect of the eviction of the defendant from the leased
premises. Such execution pending appeal has no effect on the merits of the ejectment suit which
still has to be resolved in the pending appeal. Rule 70, Sec. 21 of the Rules provides that the RTC
judgment against the defendant shall be immediately executory, without prejudice to a further
appeal that may be taken therefrom [Uy v. Santiago, 336 SCRA 680 [2000]).
Q: On 10 January 1990, X leased the warehouse of A under a lease contract with a period of
five years. On 08 June 1996, A filed an unlawful detainer case against X without a prior
demand for X to vacate the premises.
Can X contest his ejectment on the ground that there was no prior demand for him to
vacate the premises?
(a)
In case the Municipal Trial Court renders Judgment in favor of A, is the Judgment
immediately executory? (1997 Bar Question)
(b)
Answer:
(a)
Yes, X can contest his ejectment on the ground that there was no prior demand to vacate
the premises. (Sec. 2 of Rule 70; Casilan vs. Tomassi, 10 SCRA 261; Lesacaus. Cuevas, 125 SCRA
335).
(b)
Yes, because the Judgment of the Municipal Trial Court against the defendant X is
Immediately executory upon motion unless an appeal has been perfected, a supersedeas bond has
been filed and the periodic deposits of current rentals, if any, as determined by the Judgment will be
made with the appellate court. (Sec. 8 of former Rule 70; Sec. 19 of new Rule 70).
Alternative Answer:
(a)
Yes, X can contest his ejectment on the ground that since he continued enjoying the thing
leased for fifteen days after the termination of the lease on January 9, 1995 with the acquiescence of
the lessor without a notice to the contrary, there was an implied new lease. (Art. 1670, Civil Code).
c. Summary procedure, prohibited pleadings
Q: X files an unlawful detainer case against Y before the appropriate Metropolitan Trial
Court. In his answer, Y avers as a special and affirmative defense that he is a tenant of Xs
deceased father in whose name the property remains registered. What should the court do?
Explain briefly. (5%) (2007 Bar Question)
175
SUGGESTED ANSWER:
The court should hold a preliminary conference not later than thirty (30) days after the
defendants Answer was filed, since the case is governed by summary procedure under Rule 70,
Rules of Court, where a Reply is not allowed. The court should receive evidence to determine the
allegations of tenancy. If tenancy had in fact been shown to be the real issue, the court should
dismiss the case for lack of jurisdiction.
If it would appear that Ys occupancy of the subject property was one of agricultural
tenancy, which is governed by agrarian laws, the court should dismiss the case because it has no
jurisdiction over agricultural tenancy cases. Defendants allegation that he is a tenant of plaintiffs
deceased father suggests that the case is one of landlord- tenant relation and therefore, not within
the jurisdiction of ordinary courts.
Q: In the same controversy, after the demand letter was sent and Juan Santos failed to
comply therewith, the lawyer of Maria Cruz filed the ejectment, case with the Municipal
Court of Antipolo without going through the conciliation process at the barangay level as
required under Presidential Decree No. i508. The amount due is P1,500.00, hence, summary
procedure was followed.
May Juan Santos file a motion to dismiss for noncompliance with the requirements of the
said decree? State your reasons. (1990 Bar Question)
Answer:
No, because a motion to dismiss is not allowed in summary procedure. Moreover, the
requirement of prior recourse to barangay conciliation is not applicable since the parties did not
reside in the same city or municipality or did not reside in the same city or municipality or in
adjoining barangays of different cities or municipalities. (Tavera v. Veloso, U7 SCRA 613)
10. Contempt
a. Acts deemed punishable as indirect contempt
Q: In an action for injunction and damages, to plaintiff applied for a temporary restraining
order (or TRO) and preliminary injunction. Upon filing of the complaint, the court issued a
TRO and set the application for preliminary injunction for hearing.
As the 20-day lifetime (January 3 to 23, 1993) of the TRO was about to expire, the court
issued an order dated January 21. 1993 extending the effectivity of the TRO for another
twenty days (January 24, 1993 to February 13. 1993).
On March 5, 1993, the court, after hearing, denied the application for preliminary injunction.
Supposing that on January 28, 1993, the defendant committed an act in violation of the TRO,
is he guilty of indirect contempt? Explain. (1993 Bar Question)
Answer:
No. because in order to constitute indirect contempt, the writ disobeyed must be lawful. In
this case, the court had no authority to extend the effectivity of the TRO for another twenty days.
Consequently, the defendant did not commit indirect contempt by committing an act on January 28,
1993 in violation of TRO. The extension was null and void. (Carbungco us. Court of Appeals, 181
SCRA 313).
176
Q: A filed a complaint for the recovery of ownership of land against B who was represented
by her counsel X. In the course of the trial, B died. However, X failed to notify the court of B's
death. Hie court proceeded to hear the case and rendered judgment against B. After the
Judgment became final, a writ of execution was issued against C, who being B's sole heir,
acquired the property.
If you were counsel of C, what course of action would you take? [3%1
1.
Did the failure of counsel X to inform the court of Bs death constitute direct
contempt? (2%) (1998 Bar Question)
2.
SUGGESTED ANSWER:
1.
As counsel of C, I would move to set aside the writ of execution and the judgment for lack
of jurisdiction and lack of due process in the same court because the judgment is void. If X had
notified the court of B's death, the court would have ordered the substitution of the deceased by C,
the sole heir of B. (Sec. 16 of Rule 3) The court acquired no jurisdiction over C upon whom the trial
and the Judgment are not binding. (Ferreira vs. Ibarra Vda. de Gonzales, 104 Phil. 143; Vda. de la
Cruz vs. Court of Appeals, 88 SCRA 695; Lawas vs. Court of Appeals, 146 SCRA 173.) 1 could also file
an action to annul the judgment for lack of jurisdiction because C, as the successor of B, was
deprived of due process and should have been heard before judgment. (Rule 47, 1997 Rules of Civil
Procedure.)
ALTERNATIVE ANSWER:
1. While there are decisions of the Supreme Court which hold that if the lawyer failed to notify
the court of his client's death, the court may proceed even without substitution of heirs and
the judgment is valid and binding on the heirs of the deceased (Florendo vs, Coloma, 129
SCRA 304 and other cases.), as counsel of C, I will assail the judgment ahd execution for lack
of due process.
SUGGESTED ANSWER:
2. No. It is not direct contempt under Sec. 1 of Rule 71, but it is indirect contempt within the
purview of Sec. 3 of Rule 71. The lawyer can also be the subject of disciplinary action. (Sec.
16, Rule 3,1997 Rules of Civil Procedure.)
Q: Suppose that by virtue of an execution of the Judgment in an ejectment case defendant
was successfully ousted from the property in litigation and plaintiff was lawfully placed in
possession thereof, but seven (7) years later defendant re-entered the property and forcibly
took over possession, can plaintiff move that defendant be declared in indirect contempt?
Explain. (1995 Bar Question)
Answer:
Yes, because the defendant violated Sec. 3(b) of Rule 71 when after being ousted from the
property in litigation and the plaintiff was lawfully placed in possession, he re-enters the property
and forcibly took over possession.
177
IV. Special Proceedings

Q: An heir/oppositor in a probate proceeding filed a motion to remove the administrator on
the grounds of neglect of duties as administrator and absence from the country. On his part
the heir/oppositor served written interrogatories to the administrator preparatory to
presenting the latter as a witness. The administrator objected, insisting that the modes of
discovery apply only to ordinary civil actions, not special proceedings. Rule on the matter.
SUGGESTED ANSWER:
The administrators contention that the modes of discovery apply only to ordinary civil
actions and not to special proceedings is not correct. Section 2, Rule 72 of the Rules of Court
provides that: In the absence of special provisions, the rules provided for in ordinary civil actions
shall be, as far as practicable, applicable in special proceedings. There is no provision to the
contrary that would preclude the application of the modes of discovery, specifically Interrogatories
to Parties under Rule 25 of the Rules, to probate proceedings.
A. Settlement of estate of deceased persons, venue and process

1. Which court has jurisdiction
Q: A, a resident of Malolos, Bulacan, died leaving an estate located in Manila, worth
P200,OOO.OO. In what court, taking into consideration the nature of jurisdiction and of
venue, should the probate proceeding on the estate of A be instituted? (2003 Bar Question)
SUGGESTED ANSWER:
The probate proceeding on the estate of A should be instituted in the Municipal Trial Court
of Malolos, Bulacan which has jurisdiction, because the estate is valued at P200,000.00, and is the
court of proper venue because A was a resident of Malolos at the time of his death. (Sec. 33 of BP
129 as amended by RA 7691; Sec. 1 of Rule 73).
Q: Josefa filed in the Municipal Circuit Trial Court of Alicia and Mabini, a petition for the
probate of the will of her husband, Martin, who died in the Municipality of Alicia, the
residence of the spouses. The probable value of the estate which consisted mainly of a house
and lot was placed at P95.000.00 and in the petition for the allowance of the will, attorney's
fees in the amount of P10,000.00, litigation expenses in the amount of P5,000.00 and costs
were included. Pedro; the next, of kin of Martin, filed an opposition to the probate of the will
on the ground that the total amount included in (he relief of the petition is more than
P100,000.00, the maximum Jurisdictional amount for municipal circuit trial court. The court
overruled the opposition and proceeded to hear the case.
Was the municipal circuit trial court correct in its ruling? Why? (5%) (2001 Bar Question)
SUGGESTED ANSWER:
Yes, the Municipal Circuit Trial Court was correct in proceeding to hear the case. It has
exclusive jurisdiction in all matters of probate, both testate and intestate, where the value of the
estate does not exceed P100,000,00 (now (P200.000.00). The value in this case of P95.000.00 is
within its jurisdiction. In determining the jurisdictional amount, excluded are attorney's fees,
litigation expenses and costs; these are considered only for determining the filing fees. (B.P. Big.
129, sec. 33, as amended)
178
2. Venue in judicial settlement of estate

Q: State the rule on venue in judicial settlement of estate of deceased persons. (2%)(2005
Bar Question)
SUGGESTED ANSWER:
The rule on venue in judicial settlement of estate of deceased persons may be stated as
follows: If the decedent is an inhabitant of the Philippines at the time of his death/whether a citizen
or an alien, the venue shall be in the Regional Trial Court in the province in which he resides at the
time of his death. It cannot be in the place where he used to live (Jao v. Court of Appeals, 382 SCRA
407 [2002]}. If he is an inhabitant of a foreign country, the Regional Trial Court of any province in
which he had estate, is the proper venue. The court first taking cognizance of the case shall exercise
jurisdiction to the exclusion of all other courts. When the marriage is dissolved by the death of the
husband or wife, the community property shall be inventoried, administered, and liquidated, and
the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both
spouses have died, the conjugal partnership shall be liquidated in the testate or intestate
proceedings of either. (Secs. 1 and 2, Rule 73, Rules of Court.)
B. Summary settlement of estates
1. Extrajudicial settlement by agreement between heirs, when allowed
Q: The heirs of H agree among themselves that they will honor the division of Hs estate as
indicated in her Last Will and Testament. To avoid the expense of going to court in a Petition
for Probate of the Will, can they instead execute an Extrajudicial Settlement Agreement
among themselves? Explain briefly. (5%) (2007 Bar Question)
SUGGESTED ANSWER:
The heirs of H cannot validly agree to resort to extrajudicial settlement of his estate and do
away with the probate of Hs last will and testament. Probate of the will is mandatory (Guevarra v.
Guevarra, 74 Phil. 479 [1943]). The policy of the law isrto respect the will of the testator as
manifested in the other dispositions in his last will and testament, insofar as they are not contrary
to law, public morals and public policy. Extrajudicial settlement of an estate of a deceased is
allowed only when the deceased left no last will and testament and all debts, if any, are paid (Rule
74, Sec. 1, Rules of Court).
Q: Nestor died intestate in 2003, leaving no debts. How may his estate be settled by his heirs
who are of legal age and have legal capacity? Explain. (2%)(2005 Bar Question)
SUGGESTED ANSWER:
If the decedent left no will and no debts, and the heirs are all of age, the parties may, without
securing letters of administration, divide the estate among themselves by means of a public
instrument or by stipulation in a pending action for partition and shall file a bond with the register
of deeds in an amount equivalent to the value of the personal property involved as certified to
under oath by the parties concerned. The fact of extrajudicial settlement shall be published in a
newspaper of general circulation once a week for three consecutive weeks in the province. (Section
1, Rule 74, Rules of Court).
179
Q: The rules on special proceedings ordinarily require that the estate of the deceased should
be judicially administered thru an administrator or executor.
What are the two exceptions to said requirement? (5%) (2001 Bar Question)
SUGGESTED ANSWER:
The two exceptions to the requirement are:
(a)
Where the decedent left no will and no debts and the heirs are all of age, or the minors are
represented by their judicial or legal representatives duly authorized for the purpose, the parties
may without securing letters of administration, divide the estate among themselves by means of a
public instrument filed in the office of the register of deeds, or should they disagree, they may do so
in an ordinary action of partition. If there is only one heir, he may adjudicate to himself the entire
estate by means of an affidavit filed in the office of the register of deeds. The parties or the sole heir
shall file simultaneously a bond with the register of deeds, in an amount equivalent to the value of
the personal property as certified to under oath by the parties and conditioned upon the payment
of any just claim that may be filed later. The fact of the extrajudicial settlement or administration
shall be published in a newspaper of general circulation in the province once a week for three
consecutive weeks. (Sec. 1 of Rule 74, Rules of Court)
(b)
Whenever the gross value of the estate of a deceased person, whether he died testate or
intestate, does not exceed ten thousand pesos, and that fact is made to appear to the Regional Trial
Court having jurisdiction of the estate by the petition of an interested person and upon hearing,
which shall be held not less than one (1) month nor more than three (3) months from the date of
the last publication of a notice which shall be published once a week for three consecutive weeks in
a newspaper of general circulation in the province, and after such other notice to interested
persons as the court may direct, the court may proceed summarily, without the appointment of an
executor or administrator, to settle the estate. (Sec. 2 of Rule 74, Rules of Court)
Q: Rene died intestate, leaving several heirs and substantial property here in the
Philippines. (1994 Bar Question)
Assuming Rene left no debts, as counsel lor Renes heirs, what steps would you
suggest to settle Renes estate in the least expensive manner?
1)
Assuming Rene left only one heir and no debts, as counsel for Renes lone heir, what
steps would you suggest?
2)
Assuming that the value of Renes estate does not exceed P10,000.00, what remedy is
available to obtain a speedy settlement of his estate?
3)
Answer:
1)
To settle Renes estate in the least expensive manner, an extrajudicial settlement of the
estate by agreement of the parties should be made through a public instrument to be filed with the
Register of Deeds, together with a bond in an amount equivalent to the value of the personal
property involved as certified to under oath by the parties concerned and conditioned upon
payment of any just claim that may be filed within two (2) years by an heir or other person unduly
deprived of participation in the estate. The fact of extrajudicial settlement or administration shall
be published in a newspaper of general circulation once a week for three (3) consecutive weeks.
(Sec. I, Rule 74).
180
2)
If Rene left only one heir, then the heir may adjudicate to himself the entire estate by means
of an affidavit of self-adjudication to be filed also with the Register of Deeds, together with the other
requirements abovementioned. [Id.)
3)
Since the value of Renes estate does not exceed P 10,000.00, the remedy available is to
proceed to undertake a summary settlement of estates of small value by filing a petition in court
and upon hearing, which shall be held not less than one (1) month nor more than three (3) months
from the date of the last publication of a notice which shall be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in the province and after such other notice
to interested persons as the court may direct. The court may proceed summarily without the
appointment of an executor or administrator, and without delay, grant, if proper, allowance of the
will, if any, to determine the persons legally entitled to participate in the estate, and to apportion
and divide it among them after payment of such debts of the estate as the court shall then find to be
due. The order of partition if it involves real estate, shall be recorded by the proper register's office.
(Sec. 2, Rule 74).
2. Summary settlement of estates of small value, when allowed
Q: The rules on special proceedings ordinarily require that the estate of the deceased should
be judicially administered thru an administrator or executor.
What are the two exceptions to said requirement? (5%) (2001 Bar Question)
SUGGESTED ANSWER:
The two exceptions to the requirement are:
a)
Where the decedent left no will and no debts and the heirs are all of age, or the minors are
represented by their judicial or legal representatives duly authorized for the purpose, the parties
may without securing letters of administration, divide the estate among themselves by means of a
public instrument filed in the office of the register of deeds, or should they disagree, they may do so
in an ordinary action of partition. If there is only one heir, he may adjudicate to himself the entire
estate by means of an affidavit filed in the office of the register of deeds. The parties or the sole heir
shall file simultaneously a bond with the register of deeds, in an amount equivalent to the value of
the personal property as certified to under oath by the parties and conditioned upon the payment
of any just claim that may be filed later. The fact of the extrajudicial settlement or administration
shall be published in a newspaper of general circulation in the province once a week for three
consecutive weeks. (Sec. 1 of Rule 74, Rules of Court)
b)
Whenever the gross value of the estate of a deceased person, whether he died testate or
intestate, does not exceed ten thousand pesos, and that fact is made to appear to the Regional Trial
Court having jurisdiction of the estate by the petition of an interested person and upon hearing,
which shall be held not less than one (1) month nor more than three (3) months from the date of
the last publication of a notice which shall be published once a week for three consecutive weeks in
a newspaper of general circulation in the province, and after such other notice to interested
persons as the court may direct, the court may proceed summarily, without the appointment of an
executor or administrator, to settle the estate. (Sec. 2 of Rule 74, Rules of Court)
3. Remedies of aggrieved parties after extrajudicial settlement of estate
Q: Pinoy died without a will. His wife, Rosie, and three children executed a deed of
181
extrajudicial settlement of his estate. The deed was properly published and registered with
the Office of the Register of Deeds. Three years thereafter, Suzy appeared, claiming to be the
illegitimate child of Pinoy. She sought to annul the settlement alleging that she was deprived
of her rightful share in the estate. Rosie and the three children contended that (1) the
publication of the deed constituted constructive notice to the whole world, and should
therefore bind Suzy; and (2) Suzys action had already prescribed. Are Rosie and the three
children correct? Explain. (4%) (2009 Bar Question)
SUGGESTED ANSWER:
NO, the contention is not correct. Suzy can file a complaint to annul the extrajudicial
settlement and she can recover what is due her as such heir if her status as an illegitimate child of
the deceased has been established. The publication of the settlement does not constitute
constructive notice to the heirs who had no knowledge or did not take part in it because the same
was notice after the fact of execution. The requirement of publication is intended for the protection
of creditors and was never intended to deprive heirs of their lawful participation in the decedents
estate. She can file the action therefor within four (4) years after the settlement was registered.
C. Production and probate of will
1. Nature of probate proceeding
2. Who may petition for probate; persons entitled to notice
Q: Czarina died single. She left all her properties by will to her friend Duqueza. In the will,
Czarina stated that she did not recognize Marco as an adopted son because of his
disrespectful conduct towards her.
Duqueza soon instituted an action for probate of Czarina's will. Marco, on the other hand,
instituted intestate proceedings. Both actions were consolidated before the RTC of Pasig. On
motion of Marco, Duqueza's petition was ordered dismissed on the ground that the will is
void for depriving him of his legitime. Argue for Duqueza. (5%) (2010 Bar Question)
SUGGESTEDANSWER:
The petition for probate of Czarina's will, as filed by Duquesa should not be dismissed on
mere motion of Marco who instituted intestate proceedings.
The law favors testacy over intestacy, hence, the probate of the will cannot be dispensed
with. (See Sec. 5, Rule 75) Thus, unless the will which shows the obvious intent to disinherit
Marco is probated, the right of a person to dispose of his property maybe rendered nugatory (See
Seangio v. Reyes, G.R. Nos. 140371-72, Nov. 27, 2006). Besides, the authority of the probate court is
generally limited only to a determination of the extrinsic validity of the will. In this case, Marco
questioned the intrinsic validity of the will.
Q: Sergio Punzalan, Filipino, 50 years old, married, and residing at Ayala Alabang Village,
Muntinlupa City, of sound and disposing mind, executed a last will and testament in English,
a language spoken and written by him proficiently. He disposed of his estate consisting of a
parcel of land in Makati City and cash deposit at the City Bank in the sum of D300 Million. He
bequeathed P50 Million each to his 3 sons md PI 50 Million to his wife. He devised a piece of
land worth a100 Million to Susan, his favorite daughter-in-law. He lamed his best friend,
Cancio Vidal, as executor of the will without bond. (2006 Bar Question)
182
1.
Is Cancio Vidal, after learning of Sergios death, obliged to file with the proper court a
petition for probate of the latters last will and testament? 2%
SUGGESTED ANSWER:
No, Cancio Vidal is not obliged to file a petition for probate because under Sec. 3, Rule 75, he
is only obliged to deliver the will within twenty (20) days after he knows of the death of the
testator.
2.
Supposing the original copy of the last will and testament was lost, can Cancio compel
Susan to produce a copy in her possession to be submitted to the probate court? 2%
SUGGESTED ANSWER:
Yes, as a person having custody of the will, Susan has the duty to deliver the will to the court
having jurisdiction or to the executor named in the will within twenty (20) days upon learning the
death of the testator (Sec. 2, Rule 75 of the Rules of Court).
3.
xxx
4.
Can the widow and her children settle extrajudicially among themselves the estate of
the deceased? 2%
SUGGESTED ANSWER:
No, an extrajudicial settlement of estate by agreement between or among the heirs of the
deceased may be had only when the decedent left no will (Sec. 1, Rule 75 of the Rules of Court).
5.
Can the widow and her children initiate a separate petition for partition of the estate
pending the probate of the last will and testament by the proper court? 2% (2006 Bar
Question)
SUGGESTED ANSWER:
No, the widow and her children cannot file a separate petition for partition pending the
probate of the Will (Sec. 1, Rule 75 of the Rules of Court; Vda. de Kilayko v. Tengco, 207 SCRA 600,
[1992]). Partition is part of the testate estate proceeding.
D. Allowance or disallowance of will
1. Contents of petition for allowance of will
Q: In the Special Proceedings for the settlement of the intestate estate of the deceased
Johnny, his widow by his second marriage, Carmelita, moved for her appointment as
Administratrix of the estate. This was opposed by Manda, the son of Johnny by his first wife,
who moved for his appointment instead. The court appointed Carmelita, the widow, as
Administratrix.
(a)
How may Manda contest that appointment of Carmelita?
Instead of Administratrix, Carmelita was appointed Special Administratrix.

(b)
Is the same remedy available to the oppositor, Manda? Why or why not?
(c)
If Johnny left a holographic will, how may it be probated? Explain. (1988 Bar
Question)
183
Answer:
(a)
By appeal, because the appointment of an administrator is a final order under Rule 109.
(b)
No, because no appeal is allowed from the appointment of a special administrator. (Sec.1(e)
of Rule 109)
(c)
A holographic will may be probated by filing a petition for the allowance of said will. If it is
not contested, at least one competent witness who knows the handwriting and signature of the
testator should explicitly declare that the will and the signature are in the handwriting of the
testator. In the absence of any such competent witness, and if the court deem it necessary, expert
testimony may be resorted to. If it is contested, at least three witnesses who know the handwriting
of the testator should explicitly declare that the will and the signature are in the handwriting of the
testator. In the absence of any competent witness, and if the court deem it necessary, expert
testimony may be resorted to. (Secs. 1,5 and 11 of Rule 76)
2. Grounds for disallowing a will
Q: A will containing three pages was written in two leaves of paper. The will was written on
the first page of the first leaf, the second page on the reverse side of said first leaf, and the
third page on the second leaf. The signature of the testatrix as well as of the instrumental
witnesses were written on the left margin of the first page or first folio and on the third page
or second folio but not on the second page or reverse side of the first leaf.
May the will be admitted to probate? Explain. (1996 Bar Question)
Answer:
No, because the law requires that each and every page of the will should be signed by the
testator and his instrumental witnesses. (Art. 808 Civil Code; Caneda vs. Court of Appeals, 222 SCRA
781)
3. Effects of probate
Q: After Lulus death, her heirs brought her last will to a lawyer to obtain their respective
shares in the estate. The lawyer prepared a deed of partition distributing Lulus estate in
accordance with the terms of her will.
Is the act of the lawyer correct? Why? (2%) (2005 Bar Question)
SUGGESTED ANSWER:
No. No will shall pass either real or personal estate unless it is proved and allowed in the
proper court. (Section 1, Rule 75, Rules of Court.)
Q: Pedrillo, a Fil-Am permanent resident of Los Angeles, California at the time of his death,
bequeathed to Winston a sum of money to purchase an annuity.
184
Upon Pedrillo's demise, his will was duly probated in Los Angeles and the specified sum in
the will was in fact used to purchase an annuity with XYZ of Hong Kong so that Winston
would receive the equivalent of US$1,000 per month for the next 15 years.
Wanting to receive the principal amount of the annuity, Winston files for the probate of
Pedrillo's will in the Makati RTC. As prayed for, the court names Winston as administrator of
the estate. Winston now files in the Makati RTC a motion to compel XYZ to account for all
sums in its possession forming part of Pedrillo's estate. Rule on the motion. (5%) (2010 Bar
Question)
SUGGESTED ANSWER:
The motion should be denied. Makati RTC has no jurisdiction over XYZ of Hong Kong. The
letters of administration granted to Winston only covers all Pedrillo's estate in the Philippines.
(Rule 77, Sec. 4) This cannot cover the annuities in Hongkong.
At the outset, Makati RTC should not have taken cognizance of the petition filed by Winston,
because the will does not cover any property of Pedrillo located here in the Philippines.
a.
What are the requisites in order that a lost or destroyed Will may be allowed? (2%)
b.
As Will was allowed by the Court. No appeal was taken from its allowance.
Thereafter, Y, who was interested in the estate of A, discovered that the Will was not genuine
because As signature was forged by X. A criminal action for forgery was instituted against X.
May the due execution of the Will be validly questioned in such criminal action? (2%)
SUGGESTED ANSWER:
a.
In order that a lost or destroyed will may be allowed, the following must be complied with:
(1)
the execution and validity of the same should be established;
(2)
the will must have been in existence at the time of the death of the testator, or
shown to have been fraudulently or accidentally destroyed in the lifetime of the
testator without his knowledge; and
(3)
its provisions are clearly and distinctly proved by at least two credible witnesses.
(Sec. 6, Rule 76 of the Rules of Court)
b.
No. The allowance of the will from which no appeal was taken is conclusive as to its due
execution. (Sec. 1 of Rule 75.) Due execution includes a finding that the will is genuine and not a
forgery. Accordingly, the due execution of the will cannot again be questioned in a subsequent
proceeding, not even in a criminal action for forgery of the will.
Q: The last will and testament of the deceased was presented in the proceeding to settle his
estate, and in due course, hearing was set for the probate of the will. Before evidence,
thereon could be presented, the legal heirs of the deceased, his widow and two surviving
daughters, filed a manifestation that the probate of the will would no longer be necessary
since they had already agreed to divide the net estate differently in accordance with a
project of partition attached to their manifestation. Consequently, they moved that the
project of partition be approved and forthwith implemented without probate of the
185
decedents will.
Should the court grant the heirs motion and accordingly approve their project of partition
without probate of the will? Explain. (192 Bar Question)
Suggested Answer:
No. the court may not approve the project of partition without probate of the will, because no will
shall pass either real or personal estate unless it is proved and allowed in the proper court. (Sec. 1
of Rule 75) The law and public policy require the probate of the will because otherwise, the right of
a person to dispose of his property by will may be rendered, nugatory. (Ralla vs. Untalan, 172 SCRA
858)
E. Letters testamentary and of administration
1. When and to whom letters of administration granted
Q: Sergio Punzalan, Filipino, 50 years old, married, and residing at Ayala Alabang Village,
Muntinlupa City, of sound and disposing mind, executed a last will and testament in English,
a language spoken and written by him proficiently. He disposed of his estate consisting of a
parcel of land in Makati City and cash deposit at the City Bank in the sum of D300 Million. He
bequeathed P50 Million each to his 3 sons md PI 50 Million to his wife. He devised a piece of
land worth a100 Million to Susan, his favorite daughter-in-law. He lamed his best friend,
Cancio Vidal, as executor of the will without bond. (2006 Bar Question)
1.
xxx
2.
xxx
3.
Can the probate court appoint the widow as executor of the will? 2%
SUGGESTED ANSWER:
Yes, the probate court can appoint the widow as an executor of the will if Cancio Vidal is
found to be incompetent, refuses the trust, or fails to give a bond, provided that she is competent
and willing to serve (Sec. 6, Rule 78 of the Rules of Court).
4.
xxx
5.
xxx
Q: A, claiming to be an illegitimate child of the deceased D, instituted an intestate proceeding

to settle the estate of the latter. He also prayed that he be appointed administrator of said
estate. S, the surviving spouse, opposed the petition and A's application to be appointed the
administrator on the ground that he was not the child of her deceased husband D. The court,
however, appointed A as the administrator of said estate. Subsequently, S. claiming to be the
sole heir of D, executed an Affidavit of Adjudication, adjudicating unto herself the entire
estate of her deceased husband D. S then sold the entire estate to X.
1.
Was the appointment of A as administrator proper? (2%)
2.
Was the action of Sin adjudicating the entire estate of her late husband to herself
legal? (3%) (1998 Bar Question)
SUGGESTEDANSWER:
186
1.
Yes, unless it is shown that the court gravely abused its discretion in appointing the
illegitimate child as administrator, instead of the spouse. While the spouse enjoys preference, it
appears that the spouse has neglected to apply for letters of administration within thirty (30) days
from the death of the decendent. (Sec. 6, Rule 78, Rules of Court; Gaspay, Jr. vs. Court of Appeals,
238 SCRA 163.)
ALTERNATIVEANSWER:
S, the surviving spouse, should have been appointed administratrix of the estate, in as much as she
enjoys first preference in such appointment under the rules. (Sec. 6(a) of Rule 78, Rules of Court.)
SUGGESTEDANSWER:
2.
No. An affidavit of self-adjudication is allowed only if the affiant is the sole heir of the
deceased. (Sec. 1, Rule 74, Rules of Court). In this case, A also claims to be an heir. Moreover, it is
not legal because there is already a pending Juridical proceeding for the settlement of the estate.
Q: Domenico and Gen lived without benefit of marriage for twenty years, during which time
they purchased properties together. After Domenico died without a will, Gen filed a petition
for letters of administration. Domenicos siblings opposed the same on the ground that Gen
has no legal personality. Decide. (4%)(2008 Bar Question)
SUGGESTED ANSWER:
Gen has the legal personality to file the petition for letters of administration because she is an
interested person in contemplation of Section 2, Rule 79 of the Rules of Court, being a co-owner of
the properties acquired through joint efforts with Domencio during their cohabitation for 20 years.
She, therefore, has direct interest as co-owner to such properties forming part of the estate of
Domencio (.Arts. 147-148, Family Code; San Luis v. San Luis, 514 SCRA 294 [2007]).
2. Opposition to issuance of letters testamentary; simultaneous filing of petition for
administration
Q: Sal Mineo died intestate, leaving a P1 billion estate. He was survived by his wife Dayanara
and their five children. Dayanara filed a petition for the issuance of letters of administration.
Charlene, one of the children, filed an opposition to the petition, alleging that there was
neither an allegation nor genuine effort to settle the estate amicably before the filing of the
petition. Rule on the opposition. (5%) (2010 Bar Question)
SUGGESTED ANSWER:
The opposition should be overruled for lack of merit. The allegation that there was a
genuine effort to settle the estate amicably before the filling of the petition is not required by the
Rules. Besides, a petition for issuance of letters of administration may be contested on either of two
grounds: (1) the incompetency of the person for whom letters are prayed therein; and (2) the
contestant's own right to the administration. (Sec. 4, Rule 79).
187
F. Claims against the estate

a)
Rule on the issue.
Answer:
a)
704)
(b)
Answer:
(b)
(c)
Answer:
(c)
1. Claim of executor or administrator against the estate
Q: X filed a claim in the intestate proceedings of D. D's administrator denied liability and
filed a counterclaim against X. X's claim was disallowed.
(1)
Does the probate court still have jurisdiction to allow the claim of D's administrator
by way of offset? Why? (2%)
(2)
Suppose D's administrator did not allege any claim against X by way of offset, can Ds
administrator prosecute the claim in an independent proceeding? Why? (3%) (2002 Bar
188
Question)
SUGGESTED ANSWER:
(1)
No, because since the claim of X was disallowed, there is no amount against which to
offset the claim of Ds administrator.
A.
(2)
Yes, Ds administrator can prosecute the claim In an Independent proceeding since
the claim of X was disallowed. If X had a valid claim and Ds administrator did not allege any claim
against X by way of offset, his failure to do so would bar his claim forever. (Rule OS, sec. 10).
G. Actions by and against executors and administrators
Q: PJ engaged the services of Atty. ST to represent him in a civil case filed by OP against him
which was docketed as Civil Case No. 123. A retainership agreement was executed between
PJ and Atty. ST whereby PJ promised to pay Atty. ST a retainer sum of P24,000.00 a year and
to transfer the ownership of a parcel of land to Atty. ST after presentation of PJ's evidence. PJ
did not comply with his undertaking. Atty. ST filed a case against PJ which was docketed as
Civil Case No. 456. During the trial of Civil Case No. 456, PJ died.
j)
Is the death of PJ a valid ground to dismiss the money claim of Atty. ST in Civil Case
No. 456? Explain. (2%)
ii)
Will your answer be the same with respect to the real property being claimed by Atty.
ST in Civil Case No. 456? Explain. (2%) (2000 Bar Question)
SUGGESTED ANSWER:
(i)
No. Undo: Sec. 20. Rule 3, 1997 Rules of Civil Procedure, when the action is for recovery of
money arising from contract, express or Implied, and the defendant dies before entry of final
judgment in the court in which the action is pending at the time of such death, it shall not be
dismissed but shall instead be allowed to continue until entry of final Judgment. A favorable
judgment obtained by the plaintiff shall be enforced in the manner especially provided in the Rules
for prosecuting claims against the estate of a deceased person.
(ii)
Yes, my answer is the same. An action to recover real property In any event survives the
death of the defendant (Sec. 1, Rule 87, Rules of Court). However, a favorable Judgment may be
enforced in accordance with Sec. 7(b) Rule 39 (1997 Rules of Civil Procedure) against the executor
or administrator or successor in interest of the deceased.
H. Distribution and Partition
Q: A, B and C, the only heirs in Ds intestate proceedings, submitted a project of partition to
the probate court (RTC-Manila). Upon the courts approval of the partition, two lots were
assigned to C, who immediately entered into the possession of the lots. Thereafter, C died
and proceedings for the settlement of his estate were filed in the RTC-Quezon City. Ds
administrator then filed a motion in the probate court (RTC-Manila), praying that one of the
lots assigned to C in the project of partition be turned over to him to satisfy debts
corresponding to C's portion. The motion was opposed by the administrator of Cs estate.
How should the RTC- Manila resolve the motion of Ds administrator? Explain. (3%) (2002
Bar Question)
SUGGESTED ANSWER:
189
The motion of Ds administrator should be granted. The assignment of the two lots
to C was premature because the debts of the estate had not been fully paid. [Rule 90, sec.
1; Reyes v. Barreto-Datu, 19 SCRA 85 (1967)].
Q: Sammy Magdalo, executor of the estate of the deceased Rolando Aceron, submitted an
inventory which includes a ten-hectare lot occupied by Carlos Domingo. Domingo opposed
inclusion in the inventory of the property claiming ownership thereof. The probate court
directed the executor and Domingo to present evidence of ownership. Domingo refused to
participate in the proceedings, asserting lack of jurisdiction on the part of the probate court.
The probate court nonetheless proceeded with the hearing, and rendered judgment
declaring the deceased to be the owner of the questioned property. The probate court
directed Domingo to vacate' the premises.
Is the said Judgment correct? Explain your answer. (1990 Bar Question)
Answer:
No, because the probate court has no jurisdiction to adjudicate title to properties claimed to
be part of the estate of the deceased and also claimed by third parties. (Cuison v. Ramolete, 129
SCRA 495). It may only make a provisional determination for the purpose of inclusion in the
inventory of the estate. (Bolisay v. Alcid, 85 SCRA 213)
I. Escheat
Q: Give the proper venue for the following special proceedings: (1997 Bar Question)
A petition to declare as escheated a parcel of land owned by a resident of the
Philippines who died intestate and without heirs or persons entitled to the property.
(a)
(b)
xxx
(c)
xxx
Answer:
(a)
The venue of the escheat proceedings of a parcel of land in this case is the place where the
deceased last resided. (Sec. 1, Rule 91, Rules of Court).
(b)
xxx
(c)
xxx
1. Remedy of respondent against petition; period for filing a claim

Q: Suppose the property of D was declared escheated on July 1, 1990 in escheat proceedings
brought by the Solicitor General. Now, X, who claims to be an heir of D, files an action to
recover the escheated property. Is the action viable? Why? (2%) (2002 Bar Question)
SUGGESTED ANSWER:
No, the action is not viable. The action to recover escheated property must be filed
within five years from July 1,1990 or be forever barred. (Rule 91, sec. 4).
190
J. Guardianship
a.
xxx
A petition for the appointment of an administrator over the land and building left by
an American citizen residing in California, who had been declared an incompetent by an
American court.
b.
c.
xxx
Answer:
a.
xxx
b.
The venue for the appointment of an administrator over land and building of an American
citizen residing in California, declared incompetent by an American Court, is the Regional Trial
Court of the place where his property or part thereof is situated. (Sec. 1, Rule 92).
c.
xxx
1. Rule on guardianship over minor

a.
xxx
b.
xxx
c.
x xx
d.
In a case, the property of an incompetent under guardianship was in custodia legis,
can it be attached? Explain. (2%)
SUGGESTED ANSWER:
a.
xxx
b.
xxx
c.
xxx
d.
Although the property of an incompetent under guardianship is in custodia legis, it may be
attached as in fact it is provided that in such case, a copy of the writ of attachment shall be filed with
the proper court and notice of the attachment served upon the custodian of such property. (Sec. 7,
last par., Rule 57, 1997 Rules of Civil Procedure.)
K. Adoption
a.
xxx
b.
xxx
c.
A petition for the adoption of a minor residing in Pampanga.
Answer:
a.
xxx
191
b.
xxx
c.
The venue of a petition for the adoption of a minor residing in Pampanga is the Regional
Trial Court of the place in which the petitioner resides. (Sec. l, Rule 99).
L. Writ of habeas corpus
Q: Mariano was convicted by the Regional Trial Court for raping Victoria and meted the
penalty of reclusion perpetua. While serving sentence at the National Penitentiary, Mariano
and Victoria were married. Mariano filed a motion in said court for his release from the
penitentiary on his claim that under Republic Act no. 8353, his marriage to Victoria
extinguished the criminal action against him for rape, as well as the penalty imposed on him.
However, the court denied the motion on the ground that it had lost jurisdiction over the
case after its decision had become final and executory. (2005 Bar Question)
SUGGESTED ANSWER:
a)
No. The court can never lose jurisdiction so long as its decision has not yet been fully
implemented and satisfied. Finality of a judgment cannot operate to divest a court of its jurisdiction
to execute and enforce the judgment. (Echegaray v. Secretary of Justice, 301SCRA 96 [1999]).
Besides, there is a supervening event which renders execution unnecessary. (So v. 388 SCRA 107
[2002]).
b)
What remedy/remedies should the counsel of Mariano take to secure his proper and
most expeditious release from the National Penitentiary? Explain. (7%)
SUGGESTED ANSWER:
b) To secure the proper and most expeditious release of Mariano from the National
Penitentiary, his counsel should file (a) a petition for habeas corpus regarding the illegal
confinement of Mariano, or (b) a motion in the court which convicted him, to nullify the execution
of his sentence or the order of his commitment on the ground that a supervening development had
despite the finality of the judgment occurred (Melo v. People, 85 Phil. 766 11950]).
1. Contents of the petition
Q: In. 1978, Pete was convicted by the then Court of First Instance of Cavite on the sole basis
of his extrajudicial confession. The decision soon became final and Pete has since been
serving sentence until now, although to this day, he insists that he is innocent and that his
confession had been coerced. He later learned of the Supreme Courts decision in. People v.
Galit in which the Court reversed a conviction that had been based solely on an uncounselled
confession. He forthwith caused a petition for habeas corpus to be filed, alleging that his
confinement has all along been illegal. The Government opposed the petition on the ground
that the decision of conviction had long become final and may no longer be reopened and
that he is in fact serving sentence.
Will habeas corpus lie? Reasons. (1988 Bar Question)
Answer:
192
Yes, because once a deprivation of a constitutional right is shown to exist, the court that
rendered the judgment is deemed ousted of jurisdiction and habeas corpus is the appropriate
remedy to assail the legality of the detention. (Gumabon vs. Director of Prisons, 37 SCRA 420).
Another Answer:
Yes, habeas corpus will lie. Firstly, the judgment has no sufficient inasmuch a judgment of
conviction cannot be based solely on an extrajudicial confession without evidence of corpus delicti.
Secondly, Supreme Court has applied retroactively the galit ruling even to cases decided prior to
said ruling. There being no valid judgment, the detention becomes unlawful.
Alternative Answer:
No, because the judgment of conviction had long become final and has become the law of
the case. The writ of habeas corpus can issue only for want of jurisdiction of the sentencing court.
The doctrine laid down in People vs. Galit has only prospective operation and does not apply to
cases previously decided. (Pomeroy vs. Director of Prisons, 107 Phil. 50).
2. Distinguish peremptory writ from preliminary citation
Q: Douglas, married to but separated from Ellen, one day fetched from school his daughter.
5-year old Susan, and never returned heir to Ellen under whose custody the child was placed
by the Regional Trial Court of Manila in a suit for custody of the child After searching for her
daughter for days Ellen learned that Douglas had been moving the girl from one place to
another within Metro Manila the last being the residence of his sister Mary in Paranaque.
Ellens current residence is Pasig.
1.
xxx
2.
(a) What is meant by a preliminary citation in cases involving deprivation of personal
liberty? Explain.
(b) How is a preliminary citation distinguished from a peremptory writ of habeas
corpus? Explain. (1995 Bar Question)
Answer:
1.
xxx
2.
A preliminary citation merely requires the respondent to appear and show cause why the
peremptory writ of habeas corpus should not be granted. (Lee Yick Hon. vs. Collector of Customs,
41 Phil. 548)
On the other hand, the peremptory writ of habeas corpus directs the officer to have the
body of the person restrained of his liberty before the court or judge designated in the writ at the
time and place therein specified. (Sec. 6. Rule 102)
3. When writ disallowed/discharged
Q: After Alma had started serving her sentence for violation of Batas Pambansa Big. 22 (BP
22), she filed a petition of writ of habeas corpus, citing Vaca vs. CA where the sentence of
193
imprisonment of a party found guilty of violation of BP 22 was reduced to a fine equal to

double the amount of the check involved. She prayed that her sentence be similarly modified
and that she be immediately released from detention. In the alternative, she prayed that
pending determination on whether the Vaca ruling applies to her, she be allowed to post bail
pursuant to Rule 102, Sec. 14, which provides that if a person is lawfully imprisoned or
restrained on a charge of having committed an offense not punishable by death, he may be
admitted to bail in the discretion of the court. Accordingly, the trial court allowed Alma to
post bail and then ordered her release. In your opinion, is the order of the trial court
correct? (2008 Bar Question)
a)
Under Rule 102? (2%)
SUGGESTED ANSWER:
a)
No. Section 4, Rule 102 of the Rules of Court (Habeas Corpus) does not authorize a court to
discharge by writ of habeas corpus a person charged with or convicted of an offense in the
Philippines, or of a person suffering imprisonment under lawful judgment.
b)
Under the Rules of Criminal Procedure? (2%)
SUGGESTED ANSWER:
b)
No. The trial courts order releasing Alma on bail even after judgment against her has
become final and in fact she has started serving sentence, is a brazen disregard of the mandate in
Section 24, Revised Rules of Criminal Procedure that: In no case shall bail be allowed after the
accused has commenced to serve sentence. (People v. Fitzgerald, 505 SCRA 573 [2006]).
4. Rules on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors
(A.M. No. 03-04-04-SC)
Q: A was arrested on the strength of a warrant of arrest issued by the RTC In connection with
an Information for Homicide. W, the live-in partner of A filed a petition for habeas corpus
against A's jailer and police investigators with the Court of Appeals.
1.
Does W have the personality to file the petition for habeas corpus? 12%)
2.
Is the petition tenable? (3%) (1998 Bar Question)
SUGGESTED ANSWER:
1.
Yes. W, the live-in partner of A, has the personality to file the petition for habeas corpus
because it may be filed by some person in his behalf. (Sec. 3, Rule 102, Rules of Court.)
2.
No. The petition is not tenable because the warrant of arrest was issued by a court which
had jurisdiction to issue it (Sec. 4, Rule 102, Rules of Court.)
Q: While Marietta was in her place of work in Makati City, her estranged husband Carlo
barged into her house in Paranaque City, abducted their six-year old son, Percival, and
brought the child to his hometown in Baguio City. Despite Marietta's pleas, Carlo refused to
return their child. Marietta, through counsel, filed a petition for habeas corpus against Carlo
in the Court of Appeals in Manila to compel him to produce their son before the court and for
194
her to regain custody. She alleged in the petition that despite her efforts, she could no longer
locate her son.
In his comment, Carlo alleged that the petition was erroneously filed in the Court of Appeals
as the same should have been filed in the Family Court in Baguio City which, under Republic
Act no. 8369. has exclusive jurisdiction over the petition. Marietta replied that under Rule
102 of the Rules of Court, as amended, the petition may be filed in the Court of Appeals and if
granted, the writ of habeas corpus shall be enforceable anywhere in the Philippines.
Whose contention is correct? Explain. (5%) (2005 Bar Question)
SUGGESTED ANSWER:
Marietta's contention is correct. The Court of Appeals has concurrent jurisdiction with the
family courts and the Supreme Court in petitions for habeas corpus where the custody of minors is
at issue, notwithstanding the provision in the Family Courts Act (Republic Act No. 8369) that family
courts have exclusive jurisdiction in such cases. (Thornton v. Thornton, 436 SCRA 550 [2004]).
Sec. 20, par. 6 of SC AM No. 03-04-04 [2003] provides: "the petition may likewise be filed
with the Supreme Court, Court of Appeals, or with any of its members and, if so granted, the writ
shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family
Court or to any regular court within the region where the petitioner resides or where the minor
may be found for hearing and decision on the merits."
Q: Husband H files a petition for declaration of nullity of marriage before the RTC of Pasig
City. Wife W files a petition for habeas corpus before the RTC of Pasay City, praying for
custody over their minor child. H files a motion to dismiss the wifes petition on the ground
of the pendency of the other case. Rule. (2007 Bar Question)
SUGGESTED ANSWER:
The motion to dismiss the petition for habeas corpus should be granted to avoid multiplicity
of suits. The question of who between the spouses should have custody of their minor child could
also be determined in the petition for declaration of nullity of their marriage which is already
pending in the RTC of Pasig City. In other words, the petition filed in Pasig City, praying for custody
of the minor child is unnecessary and violates only the cardinal rule of procedure against
multiplicity of suits. Hence, the latter suit may be abated by a motion to dismiss on the ground of
litis pendentia (Yu v. Yu, 484 SCRA485 [2006]).
Q: Widow A and her two children, both girls, aged 8 and 12 years old, reside in Angeles City,
Pampanga. A leaves her two daughters in their house at night because she works in a brothel
as a prostitute. Realizing the danger to the morals of these two girls, B, the father of the
deceased husband of A, files a petition for habeas corpus against A for the custody of the girls
in the Family Court in Angeles City. In said petition, B alleges that he is entitled to the
custody of the two girls because their mother is living a disgraceful life. The court issues the
writ of habeas corpus. When A learns of the petition and the writ, she brings her two children
to Cebu City. At the expense of B, the sheriff of the said Family Court goes to Cebu City and
serves the writ on A. A files her comment on the petition raising the following defenses:
(a)
The enforcement of the writ of habeas corpus in Cebu City is illegal; and
(b)
B has no personality to institute the petition.

195
Resolve the petition in the light of the above defenses of A. (2003 Bar Question)
SUGGESTED ANSWER:
(a)
The writ of habeas corpus issued by the Family Court in Angeles City may not be legally
enforced in Cebu City, because the writ is enforceable only within the judicial region to which the
Family Court belongs, unlike the writ granted by the Supreme Court or Court of Appeals which is
enforceable anywhere in the Philippines. (Sec. 20 of Rule on Custody of Minors and Writ of Habeas.
Corpus in Relation to Custody of Minors. (A.M. No. 03-04-04-SC; see also Sec. 4 of Rule 102, Rules of
Court.)
(b)
B, the father of the deceased husband of A, has the personality to institute the petition for
habeas corpus of the two minor girls, because the grandparent has the right of custody as against
the mother A who is a prostitute. (Sections 2 and 13, Id.)
M. Writ of Amparo (A.M. No. 07-9-12-SC)
Q: Marinella is a junior officer of the Armed Forces of the Philippines who claims to have
personally witnessed the malversation of funds given by US authorities in connection with
the Balikatan exercises.
Marinella alleges that as a result of her expose, there are operatives within the military who
are out to kill her. She files a. petition for the issuance of a writ of amparo against, among
others, the Chief of Staff but without alleging that the latter ordered that she be killed.
Atty. Daro, counsel for the Chief of Staff, moves for the dismissal of the Petition for failure to
allege that his client issued any order to kill or harm Marinella. Rule on Atty. Daro's motion.
Explain. (3%) (2010 Bar Question)
SUGGESTED ANSWER:
The motion to dismiss must be denied on the ground that it is a prohibited pleading under
Section 11(a) of the Rule on the Writ of Amparo. Moreover, said Rule does not require the petition
therefor to allege a complete detail of the actual or threatened violation of the victim's rights. It is
sufficient that there be an allegation of real threat against petitioner's life, liberty and/ or security
(Gen. A. Razon, Jr. v. Tagitis, G.R. No. 182498, Dec. 03, 2009).
1. Coverage
2. Distinguish from habeas corpus and habeas data
Q: What is the writ of amparo? How is it distinguished from the writ of habeas corpus? (2%)
(2009 Bar Question)
SUGGESTED ANSWER:
The petition for a writ of amparo is a remedy available to any person whose right to life,
liberty and security is violated or threatened with violation by an unlawful act or omission of a
public official or employee, or of a private individual or entity. The writ shall cover extralegal
killings and enforced disappearances or threats thereof.
The writ of amparo differs from a writ of habeas corpus in that the latter writ is availed of as
a remedy against cases of unlawful confinement or detention by which any person is deprived of his
196
liberty, or cases by which rightful custody of any person is withheld from another who is lawfully
entitled thereto (Sec 1, Rule 102, Rules of Court).
N. Writ of Habeas Data (A.M. No. 08-1-16-SC)
1. Scope of writ
Q: What is the writ of habeas data? (1%) (2009 Bar Question)
SUGGESTED ANSWER:
The writ of habeas data is a remedy available to any person whose right to privacy in life,
liberty or security is violated or threatened by an unlawful act or omission of a public official or
employee, or of a private individual or entity engaged in the gathering, collecting or storing of data
or information regarding the person, family, home and correspondence of the aggrieved party.
Q: Azenith, the cashier of Temptation Investments, Inc. (Temptation, Inc.) with principal
offices in Cebu City, is equally hated and loved by her co-employees because she extends
cash advances or "vales" to her colleagues whom she likes. One morning, Azenith discovers
an anonymous letter inserted under the door of her office threatening to kill her.
Azenith promptly reports the matter to her superior Joshua, who thereupon conducts an
internal investigation to verify the said threat.
Claiming that the threat is real, Temptation, Inc. opts to transfer Azenith to its Palawan
Office, a move she resists in view of the company's refusal to disclose the results of its
investigation.
Decrying the move as a virtual deprivation of her employment, Azenith files a petition for
the issuance of a writ of habeas data before the Regional Trial Court (RTC)to enjoin
Temptation, Inc. from transferring her on the ground that the company's refusal to provide
her with a copy of the investigation results compromises her right to life, liberty and privacy.
Resolve the petition. Explain. (5%) (2010 Bar Question)
SUGGESTED ANSWER:
Azenith's petition for the issuance of a writ of habeas data must be dismissed as there is no
showing that her right to privacy in life, liberty or security is violated or threatened by an unlawful
act or omission. Neither was the company shown to be engaged in the gathering, collecting nor
storing of data or information regarding the person, family, home and correspondence of the
aggrieved party (Sec. 1, Rule on the Writ of Habeas Data).
O. Absentees
1. Purpose of the rule
2. Who may file; when to file
Q: Frank and Gina were married on June 12, 1987 in Manila. Barely a year after the wedding,
Frank exhibited a violent temperament, forcing Gina, for reasons of personal safety, to live
with her parents. A year thereafter, Gina found employment as a domestic helper in
Singapore, where she worked for ten consecutive years. All the time she was abroad, Gina
had absolutely no communications with Frank, nor did she hear any news about him. While
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in Singapore, Gina met and fell in love with Willie.

On July 4, 2007, Gina Filed a petition with the RTC of Manila to declare Frank presumptively
dead, so that she could marry Willie. The RTC granted Ginas petition. The Office of the
Solicitor General (OSG) filed a Notice of Appeal with the RTC, stating that it was appealing
the decision to the Court of Appeals on questions of fact and law.
Is a petition for Declaration of Presumptive Death a special proceeding? Why or
why not? (2%) (2009 Bar Question)
[a]
SUSGESTED ANSWER:
NO. The petition for Declaration of Presumptive Death provided in Art. 41 of the Family
Code is not the special proceeding governing absentees under Rule 107 of the Rules of Court
whose rules of procedure will not be followed (Republic v. CA, 458 SCRA [2005]). Said petition for
Declaration of Presumptive Death under Article 41 of the Family Code is a summary proceeding,
authorized for purposes only of remarriage of the present spouse, to avoid incurring the crime of
bigamy. Nonetheless, it is in the nature of a special proceeding, being an application to establish a
status or a particular fact in court.
ALTERNATIVEANSWER:
A petition for declaration of presumptive death may be considered a special proceeding,
because it is so classified in the Rules of Court (Rule 107, Rules of Court), as differentiated from an
ordinary action which is adversarial. It is a mere application or proceeding to establish the status of
a party or a particular fact, to viz: that a person has been unheard of for a long time and under such
circumstance that he may be presumed dead.
As the RTC judge who granted Ginas petition, will you give due course to the OSGs
Notice of Appeal? Explain. (3%)
[a]
SUGGESTED ANSWER:
NO. Appeal is not a proper remedy since the decision is immediately final and executory
upon notice to the parties under Art. 247 of the Family Code (Republic v. Bermudes-Lorino, 449
SCRA 57 [2005]). The OSG may assail RTCs grant of the petition only on the premise of grave abuse
of discretion amounting to lack or excess of jurisdiction. The remedy should be by certiorari under
Rule 65 of the Rules of Court.
P. Cancellation or correction of entries in the Civil Registry
1. Entries subject to cancellation or correction under Rule 108, in relation to R.A. No. 9048
Q: B files a petition for cancellation of the birth certificate of her daughter R on the round of
the falsified material entries therein made by Bs husband as the informant. The RTC sets the
case for hearing and directs the publication of the order once a week for three consecutive
weeks in a newspaper of general circulation. Summons was served on the Civil Registrar but
there was no appearance during the hearing. The RTC granted the petition. R filed a petition
for annulment of judgment before the Court of Appeals, saying that she was not notified of
the petition and hence, the decision was issued in violation of due process. B opposed saying
that the publication of the court order was sufficient compliance with due process. Rule.
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SUGGESTED ANSWER:
Rs petition for annulment of judgment before the Court of Appeals should be granted.
Although there was publication of the court order acting the petition to cancel the birth certificate,
reasonable notice still has to be served on R as she has an a interest affected by the cancellation.
(Secs. 3 and 4, Rule 108, Rules of Court) She is an indispensable party (Republic v. Benemerito, 425
SCRA 488 [2004]), and notice has to be served on her, not for the purpose of vesting the court with
jurisdiction, but to comply with the requirements of fair play and due process (Ceruila v.Delantar,
477 SCRA 134 [2005]).
ALTERNATIVE ANSWER:
The petition for annulment of judgment should not be granted. While R is an indispensable
party, it has been held that the failure to serv notice on indispensable parties is cured by the
publication made because the action is one in rem (Alba v. Court of Appeals, 465 SCRA 495 [2005];
Barco v. Court of Appeals, 420 SCRA 39 [2005]).
Q: Helen is the daughter of Eliza, a Filipina, and Tony, a Chinese, who is married to another
woman living in Chin Her birth certificate indicates that Helen is the legitima child of Tony
and Eliza and that she is a Chinese citizen, j
Helen wants her birth certificate corrected by changing her filiation from legitimate" to
illegitimate" and her citizenship from ""Chinese to Filipino" because her parents were not
married.
What petition should Helen file and what procedural requirements must be observed?
Explain. (5%) (2005 Bar Question)
SUGGESTED ANSWER:
A petition to change the record of birth by changing the filiation from "legitimate" to
illegitimate" and petitioner's citizenship from "Chinese" to Filipino because her parents were not
married, does not involve a simple summary correction of her certificate of birth, which could
otherwise be done under the authority of Republic Act No. 9048. A petition has to be filed in an
adversarial proceeding under Rule 108 of the Rules of Court, which has now been interpreted to be
adversarial in nature (Republic v. Valencia, 141 SCRA 462, [1986); Gupit, Jr., Rules of Procedure in
Family Law Annotated, 2005 ed., p. 407.) Procedural requirements include: (a) filing a verified
petition; (b) naming as parties all persons who have or claim any interest which would be affected;
(c) issuance of an order fixing the time and place of hearing; (d) giving reasonable notice to the
parties named in the petition; and (e) publication of the order once a week for three consecutive
weeks in a newspaper of general circulation. (Rule 108, Rules of Court); Co. v. The Civil Registrar of
Manila, 423 SCRA 420 [2004]).
Q: On May 12, 1990, Roman Agcaoili filed a petition in the Regional Trial Court to correct his
birth certificate by changing his citizenship from Chinese" to Filipino" and his status from
legitimate" to illegitimate". The Local Civil Registrar was named respondent in the petition.
Copy of the notice of hearing was served on the Solicitor General. The notice was published
in a newspaper of general circulation once a week for three consecutive weeks.
Before the scheduled hearing, the Solicitor General entered his appearance as counsel for
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the Republic of the Philippines and authorized the Provincial Prosecutor to appear in the
case. However, the prosecutor did not file an opposition to the petition. Instead, he appeared
at/ and participated in. the trial and even cross-examined Agcaoili and his witnesses.
There was a full-blown trial where Agcaoili presented testimonial and documentary
evidence proving that he is a Filipino citizen, being an illegitimate child of Tan Keh (Chinese)
and Cayetana Agcaoili (Filipino) who were never married. However, the Republic presented
no evidence.
After hearing, the trial court ordered the Local Civil Registrar to make the corrections sought
by Agcaoili.
The Solicitor General appealed. He argued that substantial changes in the civil registry
cannot be made under Rule 108 of the Rules of Court. Is the contention correct? Why?
Answer:
No. because proceedings under Rule 108 of the Rules of Court may be either summary or
adversary in nature. If the correction sought to be made in the civil registry is clerical, then the
procedure is summary. If the rectification affects the civil status, citizenship or nationality of a
party, it is deemed substantial and the procedure adopted is adversary. In this case, the procedure
was adversary. The proper notice was published and served on the Solicitor General. There was a
full-blown trial where Agcaoili presented testimonial and documentary evidence proving that he is
a Filipino Citizen. The prosecutor authorized by the Solicitor General to appear in the case
participated in the trial and even cross-examined Agcaoili and his witnesses. Consequently, the
court correctly ordered the Local Civil Registrar to make the corrections sought. (Republic vs.
Bautista, 155 SCRA 1)
Q. Appeals in special proceedings
Q: In the Special Proceedings for the settlement of the intestate estate of the deceased
Johnny, his widow by his second marriage, Carmelita, moved for her appointment as
Administratrix of the estate. This was opposed by Manda, the son of Johnny by his first wife,
who moved for his appointment instead. The court appointed Carmelita, the widow, as
Administratrix.
a)
How may Manda contest that appointment of Carmelita?
Instead of Administratrix, Carmelita was appointed Special Administratrix.

b)
Is the same remedy available to the oppositor, Manda? Why or why not?
c)
If Johnny left a holographic will, how may it be probated? Explain. (1988 Bar
Question)
Answer:
a)
By appeal, because the appointment of an administrator is a final order under Rule 109.
b)
No, because no appeal is allowed from the appointment of a special administrator. (Sec.1(e)
of Rule 109)
c)
A holographic will may be probated by filing a petition for the allowance of said will. If it is
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not contested, at least one competent witness who knows the handwriting and signature of the
testator should explicitly declare that the will and the signature are in the handwriting of the
testator. In the absence of any such competent witness, and if the court deem it necessary, expert
testimony may be resorted to. If it is contested, at least three witnesses who know the handwriting
of the testator should explicitly declare that the will and the signature are in the handwriting of the
testator. In the absence of any competent witness, and if the court deem it necessary, expert
testimony may be resorted to. (Secs. 1,5 and 11 of Rule 76)
V. Criminal Procedure
A. General matters
1. Distinguish jurisdiction over subject matter from jurisdiction over person of the accused
Q: Jose, Alberto and Romeo were charged with murder. Upon filing of the information, the
RTC judge issued the warrants for their arrest. Learning of the issuance of the warrants, the
three accused jointly filed a motion for reinvestigation and for the recall of the warrants of
arrest. On the date set for hearing of their motion, none of the accused showed up in court
for fear of being arrested. The RTC judge denied their motion because the RTC did not
acquire jurisdiction over the persons of the movants. Did the RTC rule correctly? (4%) (2008
Bar Question)
SUGGESTED ANSWER:
The RTC ruled correctly in denying the motion for reinvestigation and for the recall of the
warrants of arrest, because the accused have not surrendered their persons to the court.
Jurisdiction over the person of the accused can only be obtained through arrest or voluntary
surrender. (Dimatulac v. Villon, 297 SCRA 679 [1998])
No, the court acquired jurisdiction over the person of the accused when they filed the
aforesaid motion and invoked the court's authority over the case, without raising the issue of
jurisdiction over their person. Their filing the motion is tantamount to voluntary submission to the
court's jurisdiction and contributes voluntary appearance (486 SCRA 377[2006]).
a.
Distinguish a Complaint from Information. (2%)
SUGGESTED ANSWER:
a.
In criminal procedure, a complaint is a sworn written statement charging a person with an
offense, subscribed by the offended party, any peace officer or other peace officer charged with
the enforcement of the law violated. (Sec. 3, Rule 110, 1985 Rules of Criminal Procedure); while an
information is an accusation in writing charging a person with an offense subscribed by the prosecutor and filed with the court. (Sec. 4, Id.)
2. Jurisdiction of criminal courts
Q: In complex crimes, how is the jurisdiction of a court determined? (2003 Bar Question)
201
SUGGESTED ANSWER:
In a complex crime, jurisdiction over the whole complex crime must be lodged with
the trial court having jurisdiction to impose the maximum and most serious penalty
imposable on an offense forming part of the complex crime. (Cuyos v. Garcia, 160 SCRA 302
[1988]).
3. When injunction may be issued to restrain criminal prosecution
Q: Will injunction lie to restrain the commencement of a criminal action? Explain. (2%)
(1999 Bar Question)
SUGGESTED ANSWER:
As a general rule, injunction will not lie to restrain a criminal prosecution except:
(1)
To afford adequate protection to the constitutional rights of the accused;
(2)
When necessary for the orderly administration of justice or to avoid oppression or

multiplicity of actions;
(3)
When double jeopardy is clearly apparent;
(4)
Where the charges are manifestly false and motivated by the lust for vengeance;
(5)
Where there is clearly no prima facie case against the accused and a motion to
quash on that ground has been denied.
(See cases cited in Roberts, Jr., vs. Court of Appeals, 254 SCRA 307 [1996] and Brocka v. Enrile, 192
SCRA 183 [1990].)
B. Prosecution of offenses
1. Criminal actions, how instituted
Q: A filed with the Office of the Fiscal a Complaint for estafa against B. After the preliminary
investigation, the Fiscal dismissed the Complaint for lack of merit. May the Fiscal be
compelled by mandamus to file the case in court? Explain. (2%) (1999 Bar Question)
SUGGESTED ANSWER:
No. The public prosecutor may not be compelled by mandamus to file the case in court
because the determination of probable cause is within the discretion of the prosecutor. The remedy
is an appeal to the Secretary of Justice. (Sec. 4 Rule 112.)
Q: On May 20. 1992, the police charged accused before the prosecutors office with violation
of a municipal ordinance which carries a penalty of six months imprisonment. The offense
was allegedly committed on May 11, 1990.
On October 2.1992, the corresponding information was filed with the Municipal Trial Court.
Accused moved to quash the information on the ground that the crime had prescribed for
the reason that the information was filed beyond the two-month period from the date of the
alleged offense.
For its part, the prosecution contended that the prescriptive period was suspended upon the
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filing of the complaint against accused with the Office of the Prosecutor.
Who is correct? Explain. (1993 Bar Question)
Answer:
The accused is correct. The offense charged, violation - of a municipal ordinance, is governed by the
Rule on Summary Procedure. Under the 1988 amendment Of Section 1, Rule 110, of the 1985 Rules
on Criminal Procedure; the filing of a complaint- with the prosecutors office interrupts the period
of prescription of the offense charged. However, this provision applies to "offenses not subject to
the rule on summary procedure in. special cases", according to the opening phrase in said Section 1
of Rule 110. Consequently, when the corresponding information was filed* with the Municipal Trial
Court, the offense had already prescribed. (Zaldivia us. Reyes, 211 SCRA 277).
Alternative Answer:
The Prosecutor is correct. The filing of the complaint by the police with the Prosecutors office on
May 20. 1993 interrupted the period of prescription of the offense charged. It was clearly the
intention of the 1988 amendment to apply the same to all offenses, including those subject to the
rule of Summary Procedure.
2. Who may file them, crimes that cannot be prosecuted de officio
Q: After an information for homicide was filed by the city prosecutor in the Regional Trial
Court of Quezon City, the accused asked the prosecutor for a reinvestigation, which he
granted. After the reinvestigation, the prosecutor filed a motion in court to withdraw the
information having found no sufficient evidence to continue with the prosecution of the case.
Considering that the prosecutor has the direct control and supervision over the prosecution
of the case, are the steps undertaken by him proper under the circumstances? Decide with
reasons. (1990 Bar Question)
Answer:
Yes, the prosecutor may file a motion to withdraw the information. However the motion
may be denied by the Court, in which case the prosecutor will be required to present whatever
evidence he has. (Crespo v. Mogol 151 SCRA 462) If the Court gravely abuses its discretion,
certiorari lies. (Quizo v. Sandiganbayan, 149 SCRA 110)
Q: Magdalena Campos, a married woman and Santiago Mendoza, a married man, were
indicted for adultery in an Information filed by the Prosecutor of Bataan upon a sworn
complaint filed by Mrs. Cynthia Mendoza, wife of Santiago. Both accused filed a motion to
quash alleging that the trial court has not acquired Jurisdiction over the case because no
complaint has been filed by the husband of Magdalena Campos. They cite Section 5, Rule 110
of the Revised Rules of Court which provides, among others, that the crime of adultery "...
shall not be prosecuted except upon a complaint filed by the offended spouse." How would
you resolve the motion to quash? (2003 Bar Question)
Answer:
Motion to quash granted. The offended spouse who should have filed the sworn complaint
for adultery was the husband of Magdalena Santos, not the wife of Santiago Mendoza. Adultery is
203
committed by any married woman who shall have sexual intercourse with a man not her husband
and by the man who has carnal knowledge of her knowing her to be married. (Art. 333, RPC)
3. Criminal actions, when enjoined
Q: May the prosecution of a criminal case be enjoined? Explain.
Answer:
The prosecution of a criminal case may be enjoined in the following exceptional cases:
1)
For the orderly administration of justice;
2)
To prevent the use of the strong arm of the law in an oppressive or vindictive manner;
3)
To avoid multiplicity of suits;
4)
To afford adequate protection to constitutional rights;
5)
In proper cases, when the statute relied upon is unconstitutional. (Primicias vs. Municipality
of Urdaneta, 93 SCRA 462).
4. Control of prosecution
Q: Your friend YY, an orphan, 16years old, seeks your legal advice. She tells you that ZZ, her
uncle, subjected her to acts of lasciviousness; that when she told her grandparents, they told
her to just keep quiet and not to file charges against ZZ, their son. Feeling very much
aggrieved, she asks you how her uncle ZZ can be made to answer for his crime.
(a)
What would your advice be? Explain. (3%)
(b)
Suppose the crime committed against YY by her uncle ZZ is rape, witnessed by your
mutual friend XX. But this time, YY was prevailed upon by her grandparents not to file
charges. XX asks you if she can initiate the complaint against ZZ. Would your answer be the
same? Explain. (2%) (2000 Bar Question)
SUGGESTED ANSWER:
(a)
I would advise the minor, an orphan of 16 years of age, to file the complaint herself
Independently of her grandparents, because she Is not Incompetent or Incapable of doing so upon
grounds other than her minority. (Sec. 5, Rule 110, Rules of Criminal Procedure).
(b)
Since rape is now classified as a Crime against Persons under the Anti-Rape Law of 1997
(RA 8353), 1 would advise XX to initiate the complaint against ZZ.
5. Designation of offense
Q: The prosecution filed an information against Jose for slight physical injuries alleging the
acts constituting the offense but without anymore alleging that it was committed after Jose's
unlawful entry in the complainant's abode.
Was the information correctly prepared by the prosecution? Why? (5%) (2001 Bar
Question)
SUGGESTED ANSWER:
204
No. The aggravating circumstance of unlawful entry in the complainant's abode has to be
specified in the information; otherwise, it cannot be considered as aggravating. (Sec. 8 of Rule 110,
Revised Rules of Criminal Procedure)
ALTERNATIVE ANSWER:
The information prepared by the prosecutor is not correct because the accused should have
been charged with qualified trespass to dwelling.
Q: Fernando was charged with the crime of rape pursuant to the information alleging that by
means of force, violence and intimidation, he had carnal knowledge of Elaine, a 13- year old
girl.
After trial, the court found that the theory of force and involuntariness in the sexual
interlude between Fernando and Elaine was disproven and that, on the contrary, it was a
consensual affair. It. therefore, concluded that Fernando cannot be held liable for rape.
.
Nevertheless, the court found that Fernando committed deceit, through promise of marriage,
in successfully persuading Elaine to give up her virginity.
Supposing that the evidence overwhelmingly shows that the crime of simple seduction had
been committed by Fernando, can he be convicted for that crime? Explain. (1993 Bar
Question)
Answer:
No. because Fernando was not charged with simple seduction. He was charged with having
carnal knowledge of Elaine by means of force, violence and intimidation. There was no allegation of
deceit in the information. Rape does not necessarily include simple seduction. Hence, he could not
be convicted of simple seduction. (Sec. 4, Rule 120; Barba vs. People. 89 SCRA 112).
6. Amendment or Substitution of complaint or information
Q: Within the context of the rule on Criminal Procedure, distinguish an amendment from a
substitution of an information. (1994 Bar Question)
Answer:
An amendment may be made in substance and form, without leave of court, at any time
before an accused pleads, and thereafter and during the trial as to all matters of form, by leave and
at the discretion of the court, when the same can be done without prejudice to the rights of the
accused. Substitution may be made if it appears at any time before Judgment that a mistake has
been made in charging the proper offense, in which case, the court shall dismiss the complaint or
information upon filing of a new one charging the proper offense in accordance with Rule 119, Sec.
11, provided that the accused would not be placed thereby in double jeopardy and may also require
the witnesses to give ball for their appearance at the trial. (Sec. 14, Rule 110; Teehankee. Jr. v.
Madayag, 207 SCRA 134)
205
Q: Pedrito and Tomas, Mayor and Treasurer, respectively, of the Municipality of San Miguel,
Leyte, are charged before the Sandiganbayan for violation of Section 3 (e), Republic Act No.
3019 (Anti-Graft and Corrupt Practices Act). The information alleges, among others, that the
two conspired in the purchase of several units of computer through personal canvass
instead of a public bidding, causing undue injury to the municipality.
Before arraignment, the accused moved for reinvestigation of the charge, which the court
granted. After reinvestigation, the Office of the Special Prosecutor filed an amended
information duly signed and approved by the Special Prosecutor, alleging the same delictual
facts, but with an additional allegation that the accused gave unwarranted benefits to SB
Enterprises owned by Samuel. Samuel was also indicted under the amended information.
Before Samuel was arraigned, he moved to quash the amended information on the ground
that the officer who filed the same had no authority to do so. Resolve the motion to quash
with reasons. (3%) (2009 Bar Question)
SUGGESTED ANSWER:
The motion to quash filed by Samuel should be granted.
There is no showing that the special prosecutor was duly authorized or deputized to
prosecute Samuel. Under R.A. No. 6770) also known as the Ombudsman Act of 1989, the Special
Prosecutor has the power and authority, under the supervision and control of the Ombudsman, to
conduct preliminary investigation and prosecute criminal cases before the Sandiganbayan and
perform such other duties assigned to him by the Ombudsman (Calingin v. Desierto, 529 SCRA 720
[2007])
Absent a clear delegation of authority from the Ombudsman to the Special Prosecutor to file
the information, the latter would have no authority to file the same. The Special Prosecutor cannot
be considered an alter ego of the Ombudsman as the doctrine of qualified political agency does not
apply to the Office of the Ombudsman. In fact, the powers of the Office of the Special Prosecutor
under the law may be exercised only under the supervision and control and upon the autority of the
Ombudsman (Perez v. Sandiganbayan, 503 SCRA 252[2006]).
ALTERNATIVE ANSWER:
The-motion to quash should be denied for lack of merit. The case is already filed in court
which must have been done with the approval of the Ombudsman, and thus the Special Prosecutors
Office of the Ombudsman takes over. As it is the court which ordered the reinvestigation, the Office
of the Special Prosecutor which is handling the case in court, has the authority to act and when
warranted, refile the case. The amendment made is only a matter of form which only particularized
the violation of the same provision of Rep. Act 3019, as amended.
A.
D and E were charged with homicide in one information. Before they couid be
arraigned, the prosecution moved to amend the information to exclude E therefrom. Can the
court grant the motion to amend? Why? (2%)
B.
On the facts above stated, suppose the prosecution, instead of filing a motion to
amend, moved to withdraw the information altogether and its motion was granted. Can the
prosecution refile the information although this time for murder? Explain (3%)
C.
If an information was filed in the RTC-Manila charging D with homicide and he was
206
arrested in Quezon City, in what court or courts may he apply for bail? Explain. (3%)
D.
D was charged with theft of an article worth P15,000.00. Upon being arraigned, he
pleaded not guilty to the offense charged. Thereafter, before trial commenced, he asked the
court to allow him to change his plea of not guilty to a plea of guilty but only to estafa
involving P5,000.00. Can the court allow D to change his plea? Why? (2%)
SUGGESTED ANSWER:
A.
Yes, provided notice is given to the offended party and the court states its reasons
for granting the same. (Rule 110, sec. 14).
B.
Yes, the prosecution can re-file the information for murder in substitution of the
information for homicide because no double jeopardy has as yet attached. [Galvez v. Court of
Appeals, 237 SCRA 685 (1994)].
C.
D may apply for bail in the RTC-Manila where the Information was filed or in the RTCQuezon City were he was arrested, or if no judge thereof is available, with any metropolitan trial
judge, municipal trial judge or municipal circuit trial judge therein. (Rule 114, sec. 17).
D.
No, because a plea of guilty to a lesser offense may be allowed If the lesser offense is
necessarily included in the offense charged. (Rule 116, sec. 2). Estafa involving P5,000.00 is not
necessarily included In theft of an article worth P15,000.00
Q: Amando was charged with frustrated homicide. Before he entered his plea and upon the
advice of his counsel, he manifested his willingness to admit having committed the offense of
serious physical injuries. The prosecution then filed an amended information for serious
physical Injuries against Amando.
What steps or action should the prosecution take so that the amended information against
Amando which downgrades the nature of the offense could be validly made? Why? (5%)
(2001 Bar Question)
SUGGESTED ANSWER:
In order that the amended information which downgrades the nature of the offense could
be validly made, the prosecution should file a motion to ask for leave of court with notice to the
offended party. (Sec. 14 of Rule 110, Revised Rules of Criminal Procedure). The new rule is for the
protection of the interest of the offended party and to prevent possible abuse by the prosecution.
Q: A was accused of homicide for the killing of B. During the trial, the public prosecutor
received a copy of the marriage certificate of A and B. (1997 Bar Question)
Can the public prosecutor move for the amendment of the information to charge A
with the crime of parricide?
(a)
Suppose instead of moving for the amendment of the information, the public
prosecutor presented in evidence the marriage certificate without objection on the part of
the defense, could A be convicted of parricide?
(b)
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Answer:
(a)
No. The information cannot be amended to change the offense charged from homicide to
parricide. Firstly, the marriage is not a supervening fact arising from the act constituting the charge
of homicide. (Sec. 7(al of Rule 117). Secondly, after plea, amendments may be done only as to
matters of form. The amendment is substantial because it will change the nature of the offense.
(Sec. 14 of Rule 110; Dionaldo us. Dacuycuy, 108 SCRA 736).
(b)
No. A can be convicted only of homicide not of parricide which is a graver offense. The
accused has the constitutional rights or due process and to be informed of the nature and the cause
of the accusation against him. (Secs. 1, 14 (1) and (2) Art. Ill, 1387 Constitution).
Q: In an action for reconveyance of a parcel of land filed in the Regional Trial Court, the
defendant, through his lawyer, filed an answer therein admitting the averment in the complaint that the land was acquired by the plaintiff through inheritance from his parents, the
former owners thereof.
Subsequently, the defendant changed his lawyer and, with leave of court, amended the
answer. In the amended answer, the abovementioned admission no longer appears; instead,
the alleged ownership of the land by the plaintiff was denied coupled with the allegation that
the defendant is the owner of the land for the reason that he bought the same from the
plaintiffs parents during their lifetime.
After trial, the Regional Trial Court rendered a decision upholding the defendants
ownership of the land.
On appeal, the plaintiff contended that the defendant is bound by the admission contained in
his original answer.
Is the contention of plaintiff correct? Why? (1993 Bar Question)
Answer:
No, because pleadings that have been amended disappear from the record, lose their status
as pleadings and cease to be judicial admissions. While they mav nonetheless be utilized as against
the pleader as extrajudicial admissions, they must, in order to have such effect, be formally offered
in evidence. [Director of Lands vs. Court of Appeals, 196 SCRA 94)
Alternative Answer:
Yes, because an admission in the original pleading does not cease to be a judicial admission
simply because it was deleted in an amended pleading. The original answer, although replaced by
an amended answer does not cease to be part of a judicial record, not having been expunged
therefrom. (Dissenting opinion in Torres vs. Court of Appeals, 131 SCRA 24).
7. Venue of criminal actions
Q: Where is the proper venue for the filing of an information in the following cases? (1997
Bar Question)
The theft of a car in Pasig City which was brought to Obando. Bulacan, where it was
cannibalized.
(a)
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The theft by X. a bill collector of ABC Company, with main offices in Makati City, of his
collections from customers in Tagaytay City. In the contract of employment, X was detailed
to the Calamba branch office, Laguna, where he was to turn in his collections.
(b)
The malversation of public funds by a Philippine consul detailed in the Philippine

Embassy in London.
(c)
Answer:
(a)
The proper venue is in Pasig City where the theft of the car was committed, not in Obando
where it was cannibalized. Theft is not a continuing offense (People v. Mercado, 65 Phil 665).
(b)
If the crime changed is theft, the venue is in Calamba where he did not turn in his
collections, if the crime of X is estafa, the essential ingredients of the offense took place in Tagaytay
City where he received his collections, in Calamba where he should have turned in his collections,
and in Makati City where the ABC Company was based. The information may therefore be filed in
Tagaytay City or Calamba or Makati which have concurrent territorial Jurisdiction. (Catingub vs.
Court of Appeals, 121 SCRA 106).
(c)
The proper court is the Sandiganbayan which has jurisdiction over crimes committed by a
consul or higher official in the diplomatic service. (Sec. 4 (c), PD 1606, as amended by RA. No.
7975). The Sandiganbayan is a national court. (Nunez Sandiganbayan, 111 SCRA 433 (1982). It has
only one venue at present, which is in Metro Manila, until RA. No. 7975, providing for two other
branches in Cebu and in Cagayan de Oro, is implemented.
(b)
The information may be filed either in Calamba or in Makati City, not in Tagaytay City
where no offense had as yet been committed.
(c)
Assuming that the Sandiganbayan has no Jurisdiction, the proper venue is the first Regional
Trial Court in which the charge is filed (Sec. 15(d), Rule 110, Rules of Court).
8. Intervention of offended party
Q: X, driver of Y Bus Co. was charged with homicide, serious physical injuries and damage to
property through reckless imprudence. Y Bus Co., as employer of X. intervened and filed a
third party complaint against Z, the insurer of the bus, for subrogation and/or contribution
in the event X is convicted and Y Bus Co is made subsidiarily liable for damages.
May Y Bus Co. intervene and file said complaint? Explain. (1996 Bar Question)
Answer:
No, Y Bus Co. may not intervene in the criminal action because it is not the offended party
and it cannot be impleaded as an accused together with X. Its remedy is to file a separate action
against Z, the insurer of the bus in the event X is convicted and Y Bus Co. is made subsidiarily liable.
209
Alternative Answer:
Yes, Y Bus Co. may be allowed to intervene inasmuch as if X were convicted it would be
subsidiarily liable for damages. Under the ruling in Pajarito us. Seneris (87 SCRA 275), the
judgment against X for damages may be enforced by execution against Y Bus Co.
C. Prosecution of civil action
1. Rule on implied institution of civil action with criminal action
Q: While cruising on a highway, a taxicab driven by Mans hit an electric post. As a result
thereof, its passenger, Jovy, suffered serious injuries. Mans was subsequently charged before
the Municipal Trial Court with reckless imprudence resulting in serious physical injuries.
Thereafter. Jovy filed a civil action against Lourdes, the owner of the taxicab, for breach of
contract, and Mans for quasi-delict. Lourdes and Mans filed a motion to dismiss the civil
action on the ground of litis pendentia, that is, the pendency of the civil action impliedly
instituted in the criminal action for reckless imprudence resulting in serious physical
injuries.
Resolve the motion with reasons. (4%) (2005 Bar Question)
SUGGESTED ANSWER:
Being a distinct cause of action, the action for breach of contract against the taxicab owner
cannot be barred by the criminal action against the taxicab driver, although the taxicab owner can
be held subsidiarily liable in the criminal case if the driver is insolvent. On the other hand, the civil
action for quasi-delict against the driver is an independent civil action under Article 33 of the Civil
Code and Sec. 3, Rule 111 of the Rules of Court, which can be filed separately and can proceed
independently of the criminal action and regardless of the result of the latter. (Samson v. Daway,
434 SCRA612 [2004]) and other cases.
Q: In an action for violation of Batas Pambansa Big. 22, the court granted the accused's
demurrerto evidence which he filed without leave of court. Although he was acquitted of the
crime charged, he, however, was required by the court to pay the private complainant the
face value of the check. The accused filed a Motion for Reconsideration regarding the order
to pay the face value of the check on the following grounds:
(a)
the demurrer to evidence applied only to the criminal aspect of the case; and
(b)
at the very least, he was entitled to adduce controverting evidence on the civil
liability.
Resolve the Motion for Reconsideration. (2003 Bar Question)

SUGGESTED ANSWER:
(a)
The Motion for Reconsideration should be denied. The ground that the demurrer to
evidence applied only to the criminal aspect of the case was not correct because the criminal action
for violation of Batas Pambansa Big. 22 included the corresponding civil action. (Sec. 1(b) of Rule
111).
(b)
The accused was not entitled to adduce controverting evidence on the civil liability,
210
because he filed his demurrer to evidence without leave of court. (Sec. 23 of Rule 119).
Q: Saturnino filed a criminal action against Alert for the latter1 s bouncing check. On the date
of the hearing after the arraignment, Saturnino manifested to the court that he is reserving
his right to file a separate civil action. The court allowed Saturnino to file a civil action
separately and proceeded to hear the criminal case. Alex filed a motion for reconsideration
contending that the civil action is deemed included in the criminal case. The court
reconsidered its order and ruled that Saturnino could not file a separate civil action.
Is the court's order granting the motion for reconsideration correct? Why? (5%) (2001 Bar
Question)
SUGGESTED ANSWER:
Yes, the court's order granting the motion for reconsideration is correct. The Rules provide
that the criminal action for violation of B.P. Big. 22 shall be deemed to include the corresponding
civil action, and that no reservation to file such civil action separately shall be allowed. [Sec. 1(b),
Rule 111, Revised Rules of Criminal Procedure)
Modesto was accused of seduction by Virginia, a poor, unemployed young girl, who has a
child by Modesto. Virginia was in dire need of pecuniary assistance to keep her child, not to say of
herself, alive. The criminal case is still pending in court and although the civil liability aspect of the
crime has not been waived or reserved for a separate civil action, the trial for the case was foreseen
to take two long years because of the heavily clogged court calendar before the Judgment may be
rendered.
Q: If you were the lawyer of Virginia, what action should you take to help Virginia in the
meantime especially with the problem of feeding the child? (5%) (2001 Bar Question)
SUGGESTED ANSWER:
To help Virginia in the meantime, her lawyer should apply for support pendente lite as
provided in the Rules. In criminal actions where the civil liability includes support for the offspring
as a consequence of the crime and the civil aspect, thereof has not been waived or reserved for a
separate civil action, the accused may be ordered to provide support pendente lite to the child bora
to the offended party. (Sec. 6 of Rule 61,1997 Rules of Civil Procedure)
Q: An information for frustrated homicide failed to allege the damages incurred by the
offended party. At the trial, the court upon objection of the accused, barred the prosecution
from proving the damages suffered by complainant for the reason that it was not alleged in
the information. Accused presented evidence to prove his innocence. After trial, the court
convicted the accused sentencing him to imprisonment without any award of damages.
Was the court correct in disallowing the prosecution from presenting proof relative to
accuseds civil liability? Explain briefly. (1996 Bar Question)
Answer:
No. in a criminal case, the civil action for recovery of civil liability is impliedly instituted
with the criminal action, unless the offended party waives the civil action, reserves his right to
institute it separately, or institutes the civil action prior to the criminal action. Consequently, the
prosecution has the right to present evidence of damages suffered even if it was not alleged. (Sec. 1
211
of Rule 111)
Q: Is the rule on the payment of docket fees in ordinary civil actions the same as that for the
claim of damages which are impliedly instituted in criminal cases? (1991 Bar Question)
Answer:
No, because in criminal cases, docket fees are required to be paid only if the complaint or
information filed in Court for trial alleges the amount of damages other than actual. (Sec. 1 of Rule
111 as amended)
Q: Qn February 21, 1990, Enrique Magno was stabbed on the right arm by Armando Reyes at
Balara, Quezon City. A complaint for slight physical injuries was filed against Reyes' with the
office of the City Prosecutor on February 28, 1990 as the injuries required five (5) days of
medical attendance. The information for slight physical injuries was filed on May 12, 1990
with the Quezon Metropolitan Trial Court. Reyes moved to quash the information on the
ground of prescription as it was filed on the 80th day. whereas the prescriptive period for
slight physical injuries is 60 days.
Should the motion to quash be granted? Decide with reasons. (1990 Bar Question)
Answer:
No. because under the 1988 Amendments to the Rules on Criminal Procedure, the filing of
the complaint with the Office of the City Prosecutor on February 28, 1990 interrupted the
prescription of the offense charged. (Sec. 1 of Rule 110)
2. When separate civil action is suspended
A.
Delia sued Victor for personal injuries which she allegedly sustained when she was
struck by a car driven by Victor. May the court receive in evidence, over proper and timely
objection by Delia, a certified true copy of a judgment of acquittal in a criminal prosecution
charging Victor with hit-and-run driving in connection with Delias injuries? Why? (3%)
B.
Is this question on direct examination objectionable: What happened on July 12,
1999? Why? (2%)
SUGGESTED ANSWER:
A.
If the judgment of acquittal in the criminal case finds that the act or omission from
which the civil liability may arise does not exist, the court may receive it in evidence over
the objection by Delia. [Rule 111, sec. 2, last paragraph].
ALTERNATIVE ANSWER:
A. If the judgment of acquittal is bases on reasonable doubt, the court may receive it in evidence
because in such case, the civil action for damages which may be instituted requires only a
preponderance of the evidence. (Art. 29, Civil Code)
212
SUGGESTED ANSWER:
B.
The question is objectionable because it has no basis, unless before the question is asked
the proper basis is laid.
3. Effect of death of the accused or convict on civil action
Q: Donald was convicted of serious physical injuries inflicted on his househelp Paula. He
appealed but died during the pendency of his appeal.
1.
What is the effect of the death of Donald on his criminal liability? Explain.
What is the effect of his death on his civil liability based solely on his criminal act?
Explain.
2.
What is the effect of his death on his civil liability based on a quasi-delict or tort?
Explain.
3.
What is the effect of his death if in the criminal case Paula did not make the necessary
reservation to file a separate civil action for damages? Explain.
4.
What is the effect of his death if Paula reserved her right to file a separate civil action
but had not yet done so when Donald died? Explain. (1995 Bar Question)
5.
SUGGESTED ANSWER:
1.
Donalds criminal liability is extinguished by his death. (Art. 89(1). RPC)
2.
The death of Donald pending appeal extinguishes not only his criminal liability but also the
civil liability based solely thereon. (People vs. Bayolas, 236 SCRA 239)
3.
His death does not affect his civil liability based on quasi-delict or tort, (Id.)
4.
If Paula did not make the necessary reservation to file a separate civil action for damages,
she could still file a separate civil action against the executor/administrator or heirs of the estate of
the accused. (Id.)
ALTERNATIVE ANSWER:
Despite the dismissal of the criminal action, the appeal shall continue with respect to the civil
liability for damages of the accused who will be substituted by his executor/ administrator or heirs.
Since despite the acquittal of an accused he can be made civilly liable under Sec. 2 of Rule 120 (Roy
Padilla vs. CA. 129SC&A588; People vs. Jalandoni 131 SCRA 454, etc.) a similar rule should be
applied in case of death of an accused.
5.
The death of Donald will not affect Paulas right to file a separate civil action against the
executor/administrator or heirs of Donald.
213
4. Prejudicial Question
Q: What is a prejudicial question? (2%) (1999 Bar Question)
SUGGESTED ANSWER:
A prejudicial question is an issue involved in a civil action which is similar or intimately
related to the issue raised in the criminal action, the resolution of which determines whether or not
the criminal action may proceed. (Sec. 5 of Rule 111.)
ANOTHER ANSWER:
A prejudicial question is one based on a fact distinct and separate from the crime but so
intimately connected with it that it determines the guilt or innocence of the accused. (Padilla, Civil
Code Annotated, 1984 ed. p. 197.)
Q: CX is charged with estafa in court for failure to remit to MMsums of money collected by him
(CX) for MM in payment for goods purchased from MM,by depositing the amounts in his (CXs)
personal bank account. CX files a motion to suspend proceedings pending resolution of a
civil case earlier filed in court by CX against MM for accounting and damages involving the
amounts subject of the criminal case. As the prosecutor in the criminal case, briefly discuss
your grounds in support of your opposition to the motion to suspend proceedings. (5%)
(2000 Bar Question)
SUGGESTED ANSWER:
As the prosecutor, I will argue that the motion to suspend is not in order for the following reasons:
(a)
The civil case filed by CXagainst MMfor accounting and damages does not involve an issue
similar to or intimately related to the issue of estafa raised in the criminal action.
(b)
The resolution of the issue in the civil case for accounting will not determine whether or
not the criminal action for estafa may proceed. (Sec. 5, Rule 111, Rules of Criminal Procedure.)
Q: Jenny charged her husband Alex with bigamy alleging that when she married him he
already had a prior valid and existing marriage with Evita, a fact Jenny did not know until
lately. Subsequently Alex also filed a case for declaration of nullity of his marriage with
Jenny claiming that his marriage with her was an absolute nullity since he discovered that
when he contracted marriage with Jenny she had a prior valid and existing marriage with
Brando.
Alex moved to suspend proceedings in his bigamy case on the ground of prejudicial question
alleging that in the event his marriage to Jenny was declared void ab initio there would be no
second marriage to speak of and the bigamy charge against him would fail for want of factual
and legal bases.
1.
Suppose that Alex filed a complaint for nullity of his marriage with Jenny on the
ground that his consent was obtained at gunpoint, would your answer be the same? Explain.
2.
Suppose that after Alex was charged with bigamy he filed a complaint for declaration
of nullity of his marriage with Evita. Could Alex have the bigamy proceedings suspended by
3.
214
invoking prejudicial question claiming that the outcome of the bigamy case would depend on
whether there was a prior valid and existing marriage, which constitutes an element of the
crime? Explain. (1995 Bar Question)
Answer:
1.
I would deny the motion of Alex. When Alex married Jenny despite his existing marriage
with Evita, he was guilty of bigamy. His subsequent action for declaration of nullity when he
discovered that Jenny had a prior valid and existing marriage with Brando cannot be raised as a
prejudicial question in the bigamy case.
2.
No, the complaint of Alex for nullity of his marriage with Jenny, on the ground that his
consent was obtained at gunpoint, is a valid prejudicial question. (Prado vs. People, 133 SCRA 602)
3.
No, because the fact that he married Jenny before his former marriage with Evita had been
legally dissolved makes him guilty of bigamy. (Art. 347, RPC)
Alternative Answer:
Yes, because if the first marriage of Alex is declared void ab initio he did not commit bigamy.
5. Rule on filing fees in civil action deemed instituted with the criminal action
Q: Name two instances where the trial court can hold the accused civilly liable even if he is
acquitted. (2%) (2010 Bar Question)
SUGGESTED ANSWER:
The Instances where the civil, liability is not extinguished despite acquittal of the accused where:
1. The acquittal is based on reasonable doubt;
2. Where the court expressly declares that the liability of the accused is not criminal but only civil in
nature; and
3. Where the civil liability is not derived from or based on the criminal act of which the accused is
acquitted (Remedios Nota Sapiera v. Court of Appeals, September 14,1999).
215
Shopping V made no mention of the pendency of the, criminal case in Sta. Maria. (2010 Bar
Question)
A.
Is V guilty of forum shopping? (2%)
SUGGESTED ANSWER:
No, V is not 'guilty of forum shopping because the case In Sta. Maria, Bulacan, Is a criminal
action rued in the name of the People of the Philippines, where civil liability arising from the crime
is deemed also instituted therewith; whereas the case rued in Urdaneta, Pangasinan, is a civil action
for quasi-delict in, the name of V and against both X and Y for all damages caused by X and Y to V,
which may be beyond the jurisdiction of MTC. Hence, the tests of forum shopping, which is res
adjudicata or litis pendencia, do not obtain here.
Moreover, substantive law (Art. 33 Civil Code) and Sec. 3, Rule III, Revised Rules of Criminal
Procedure, expressly authorize the filing. Such, action for damages entirely separate and distinct
from the criminal action.
B. Instead of filing an Answer, X and Y move to dismiss the complaint for damages on the
ground of litis pendentia. Is the motion meritorious? Explain. (2%)
SUGGESTED ANSWER:
No, the motion' to dismiss base on alleged litis pendencia is without merit because there is no
identity of parties and subject matter in the two cases. Besides, Art. 33 of the Civil Code and Rule III,
Sec. 3 of the Rules of Criminal Procedure authorize the separate civil action for damages arising
from physical injuries to proceed independently.
C. Suppose only X was named as defendant in the complaint for damages, may he move for
the dismissal of the complaint for failure of V to implead Y as an indispensable party? (2%)
SUGGESTED ANSWER:
No, X may not move for dismissal of the civil action for damages on the contention that Y is an
indispensable party who should be impleaded. Y is not an indispensable party but only a necessary
party. Besides, non-joinder and' misjoinder of parties is not a ground for dismissal of actions (Rule
3, Sec. 11, Rules of Court.)
D. X moved for the suspension of the proceedings in the criminal case to await the decision
in the civil case. For his part. Y moved for the suspension of the civil case to await the
decision in the criminal case. Which of them is correct? Explain. (2%)
SUGGESTED ANSWER:
Neither of them is correct. Both substantive law (Art.33 of the Civil Code) and procedural law (Rule
III, Sec. 3, and Rules of Criminal Procedure) provide for the two actions to proceed independently of
each other, therefore, no suspension of action is authorized.
216
D. Preliminary investigation
1. Nature of right
Q: A criminal information is filed in court charging Anselmo with homicide. Anselmo files a
motion to quash the information on the ground that no preliminary investigation was
conducted. Will the motion be granted? Why or why not? (3%) (2006 Bar Question)
SUGGESTED ANSWER:
NO, the motion to quash will not be granted. The lack of preliminary investigation is not a
ground for a motion to quash under the Rules of Criminal Procedure. Preliminary investigation is
only a statutory right and can be waived. The accused should instead file a motion for
reinvestigation within five (5) days after he learns of the filing in Court of the case against him (Sec.
6, Rule 112, as amended).
2. Purposes of preliminary investigation
Q: Governor Pedro Mario of Tarlac was charged with indirect bribery before the
Sandiganbayan for accepting a car in exchange of the award of a series of contracts for
medical supplies. The Sandiganbayan, after going over the information, found the same to be
valid and ordered the suspension of Mario. The latter contested the suspension claiming that
under the law (Sec. 13 of R.A. 3019) his suspension is not automatic upon the filing of the
information and his suspension under Sec. 13, R.A. 3019 is in conflict with Sec. 5 of the
Decentralization Act of 1967 (R.A. 5185). The Sandiganbayan overruled Mario's contention
stating that Mario's suspension under the circumstances is mandatory.
Is the court's ruling correct? Why? (5%) (2001 Bar Question)
SUGGESTED ANSWER:
Yes, Mario's suspension is mandatory, although not automatic, (Sec. 13 of R.A. No. 3019 in
relation to Sec. 5 of the Decentralization Act of 1967 (RA No. 5185). It is mandatory after the
determination of the validity of the information in a pre-suspension hearing. [Sepfovia v.
Sandiganbayan, 288 SCRA 328 (1988) and other cases]. The purpose of suspension is to prevent the
accused public officer from frustrating or hampering his prosecution by intimidating or influencing
witnesses or tampering with evidence or from committing further acts of malfeasance while in
office. (Id.)
3. Resolution of investigation prosecutor
Q: A filed with the Office of the Fiscal a Complaint for estafa against B. After the preliminary
investigation, the Fiscal dismissed the Complaint for lack of merit. May the Fiscal be
compelled by mandamus to file the case in court? Explain. (2%) (1999 Bar Question)
SUGGESTED ANSWER:
No. The public prosecutor may not be compelled by mandamus to file the case in court
because the determination of probable cause is within the discretion of the prosecutor. The remedy
is an appeal to the Secretary of Justice. (Sec. 4 Rule 112.)
217
E. Arrest
1. Arrest, how made
2. Arrest without warrant, when lawful
Q: As Cicero was walking down a dark alley one midnight, he saw an "owner-type jeepney"
approaching him. Sensing that the occupants of the vehicle were up to no good, he darted
into a corner and ran. The occupants of the vehicle- elements from the Western Police
District - gave chase and apprehended him.
The police apprehended Cicero, frisked him and found a sachet of 0.09 gram of shabu tucked
in his waist and a Swiss knife in his secret pocket, and detained him thereafter. Is the arrest
and body-search legal? (3%) (2010 Bar Question)
SUGGESTED ANSWER:
The arrest and body-search was legal. Cicero appears to be alone "walking down a dark
alley" and at midnight. There appears probable cause for the policemen to check him, especially
when he darted into a corner (presumably also dark) and run under such circumstance. Although
the arrest came after the body-search where Cicero was found with shabu and a Swiss knife, the
body search is legal under the "Terry search" rule or the "stop and frisk" rule. And because the mere
possession, with animus, of dangerous drug (the shabu) is a violation of the law (Rep. Act 9165), the
suspect is in a continuing state of committing a crime while he is illegally possessing the dangerous
drug, thus making the arrest tantamount to an arrest in flagrante: so the arrest is legal and
correspondingly, the search and seizure of the shabu and the concealed knife may be regarded as
incident to a lawful arrest.
ALTERNATIVE ANSWER:
No. The arrest and the body-search were not legal. In this case, Cicero did not run because
the occupants o of the vehicle identified themselves as police officers. He darted into the corner
and ran upon the belief that the Occupants of the vehicle were up to no good. Cicero's act of running
does not show any reasonable ground to believe that a crime has been committed or is about to be
committed for the police officers to apprehend him and conduct body search. Hence, the arrest was
illegal as it does not fall under any of the circumstances for a valid warrantless arrest provided in
Sec. 5 of Rule 113 of the Rules of Criminal Procedure.
Q: AX swindled RY in Lhe amount of P10,000 sometime in mid-2003. On the strength of the
sworn statement given by RY personally to SPOl Juan Ramos sometime in mid- 2004, and
without securing a warrant, the police officer arrested AX. Forthwith the police officer filed
with the City Prosecutor of Manila a complaint for estafa supported by RTs sworn statement
and other documentary evidence. After due inquest, the prosecutor filed the requisite
information with the MM Regional Trial Court. No preliminary investigation was conducted
either before or after the filing of the information and the accused at no time asked for such
an investigation. However, before arraignment:, the accused moved to quash the
information on the ground that the prosecutor suffered from a want of authority to file the
information because of his failure to conduct a preliminary investigation before filing the
information, as required by the Rules of Court.
Is the warrantless arrest of AX valid? Is he entitled to a preliminary investigation before the
filing of the information? Explain. (5%) (2004 Bar Question)
218
SUGGESTEDANSWER:
No. The warrantless arrest is not valid because the alleged offense has not just been
committed. The crime was allegedly committed one year before the arrest. (Sec. 5 (b) of Rule 113).
Yes, he is entitled to a preliminary investigation because he was not lawfully arrested
without a warrant. (See Sec. 7 of Rule 112). He can move for a reinvestigation.
ALTERNATIVEANSWER:
He is not entitled to a preliminary investigation because the penalty for estafa is the sum of
PIO.OOO does not exceed 4 years and 2 months. Under Sec. 1, second par., Rule 112, a preliminary
investigation is not required. (Note: The penalty is not stated in the question.)
Q: PG was arrested without a warrant by policemen while he was walking in a busy street.
After preliminary Investigation, he was charged with rape and the corresponding
information was filed In the Regional Trial Court. On arraignment, he pleaded not guilty.
Trial on the merits ensued. The court rendered Judgment convicting him. On appeal, FG
claims that the judgment is void because he was illegally arrested. If you were the Solicitor
General, counsel for the People of the Philippines, how would you refute said claim? (5%)
(2000 Bar Question)
SUGGESTED ANSWER:
Any objection to the illegality of the arrest of the accused without a warrant is deemed
waived when he pleaded not guilty at the arraignment without raising the question. It is too late to
complain about a warrantless arrest after trial is commenced and completed and a Judgment of
conviction rendered against the accused. (People v. Cabiles, 284 SCRA 199,(1999])
Q: X, common-law wife of accused Y. sobbing, went running from her residence, just some
thirty meters away, to the house of Barangay Captain Z, complaining that accused Y struck
her on the cheek with the butt of a revolver, causing her to bleed, and that accused Y
threatened to shoot her with a gun. The Barangay Captain, a retired veteran police officer,
accompanied X to the latters residence to investigate, but on their way they met accused Y
on the road. Thereupon, Barangay Captain Z confronted accused Y about the complaint of his
common-law wife X, but Y did not say anything nor deny it. The Barangay Captain, noticing
an object bulging in Ys waistline underneath his T-shirt, and believing that it was the gun he
used to injure X and to threaten her with death, frisked Y and grabbed the object which
turned out to be a .38 caliber paltik revolver. The Barangay Captain inquired whether
accused had a license to possess or permit to carry the gun, and when the latter answered in
the negative, the Barangay Captain arrested him and confiscated the firearm. From the
record of the local PNP, It was ascertained that the subject revolver was not registered
licensed in the name of accused Y.
Was the arrest of accused Y without warrant lawful pursuant to Section 5(a) of Rule 113 of
the Revised Rules on Criminal Procedure? Were the search conducted and seizure of the gun
likewise lawful without a search warrant pursuant to Section 12 of Rule 126? Explain. (1996
Bar Question)
Answer:
219
The arrest of the accused Y without warrant was lawful pursuant to Section 5(b). not (a) of
Rule 113, because an offense had in fact Just been committed and Barangay Captain Z has personal
knowledge of facts indicating that Y had committed it. When Z, accompanied by the complainant X,
met Y on the road and confronted him on the complaint of X. Y did not say anything nor deny it.
That was sufficient ground for Z to arrest Y and search him. Hence the search and seizure of the gun
was lawful without a search warrant under Sec. 12 of Rule 126.
The arrest of the accused Y without warrant was lawful under Section 5 (a) of Rule 113,
because the totality of the circumstances would indicate to a veteran police officer that a crime was
being committed in his presence, and justify an arrest of Y without warrant. Hence the search and
seizure of the gun was lawful under Sec. 12 of Rule 126.
(a)
May a person be arrested without warrant?
(b)
xxx
(c)
xxx
Answer:
a)
A person may be arrested without warrant in the following cases:

1)
When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
2)
When an offense has in fact just been committed and he has personal knowledge of
the facts indicating that the person to be arrested has committed it; and
3)
When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while his
case is pending, or has escaped while being transferred from one confinement to another.
(Sec. 5 of Rule 113)
3. Method of arrest (By officer with warrant, By officer without warrant, By private person)
Q: On his way home, a member of the Caloocan City police force witnesses a bus robber in
Pasay City and effects the arrest of the suspect. Can he bring the suspect to Caloocan City for
booking since that is where his station is? Explain briefly. (5%) (2007 Bar Question)
SUGGESTED ANSWER:
No, the arresting officer may not take the arrested suspect from Pasay City to Caloocan City.
The arresting officer is required to deliver the person arrested without a warrant to the nearest
police station or jail (Rule 112, sec. 5, 2000 Rules of Criminal Procedure). To be sure, the nearest
police station or jail is in Pasay City where the arrest was made, and not in Caloocan City.
F. Bail
1. Nature
Q: Claudio Ty was charged with murder in an information filed with the Regional Trial Court
in Dumaguete City. Through counsel, he filed #an application for ball. Without conducting a
220
hearing on said application and without giving the prosecution an opportunity to comment
thereon, the Judge granted bail to Ty after examining the complaint and the affidavit
attached to the bail application which, in the evaluation of the judge, tend to show that the
evidence of guilt is not strong. The prosecution moved for reconsideration of the order
granting ball, contending that the procedure followed by the judge was irregular. (1991 Bar
Question)
(a)
Was the procedure followed by the judge in granting bail correct?
Answer:
(a)
No. because the prosecution should have been given an opportunity to comment on the
application and to present strong evidence of guilt. (People v. Sola, 103 SCRA 393)
(b)
If the judge denies the prosecutions motion for reconsideration, what remedy or
remedies may the prosecution pursue if it wishes to assail the order before the appellate
court?
Answer:
(b) The prosecution may file a petition for certiorari and mandamus with the Court of Appeals or
the Supreme Court in order to nullify the order of the RTC and to compel it to hold a hearing. It may
also ask for a writ of preliminary injunction against the order granting bail.
(c)
Supposing that Ty, after trial, was found guilty of murder and was sentenced to
reclusion perpetua, and he appealed to the Supreme Court, is he entitled to bail during the
pendency of such appeal?
Answer:
(c)
No, Ty is not entitled to bail as a matter of right because the evidence of his guilt is so strong
that it resulted in his conviction by the trial court. However, on exceptional grounds, he may be
granted ball on appeal at the discretion of the court. (Teehankee v. Director of Prisons, 76 Phil. 756)
(d)
Supposing that Ty was convicted of the lesser offense of homicide and was sentenced
to a penalty, the maximum of which is within the range of reclusion temporal and he
appealed to the Court of Appeals is he entitled to bail during the pendency of such appeal?
Answer:
(d)
No. he is not entitled to bail as a matter of right, because he may on appeal be found guilty of
murder and sentenced to reclusion perpetua.
(e)
In relation to (d) above, the Court of Appeals did not affirm or modify the judgment.
Instead, it expressed the opinion that the crime committed is murder, and that the penalty
should be reclusion perpetua, and, accordingly certified the case to the Supreme Court for
final determination. Did it act properly?
Answer:
(e)
No. the Court of Appeals should have rendered judgment imposing the penalty of reclusion
perpetua reframed from entering Judgment, and certified the entire record to the Supreme Court
221
for review. (People v. Daniel 86 SCRA 367; Sec. 13 of Rule 124)

2. When a matter of right; exceptions
3. When a matter of discretion
Q: When is bail a matter of right and when is it a matter of discretion? 5% (2006 Bar
Question)
SUGGESTED ANSWER:
Bail is a matter of right: (a) before or after conviction by the Metropolitan Trial Court,
Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court; (b) before
conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or
life imprisonment (Sec. 4, Rule 114 of the 2000 Revised Rules on Criminal Procedure); and (c) if the
charge involves a capital offense and the evidence of guilt is not strong (Sec. 7, Rule 114 of the 2000
Revised Rules on Criminal Procedure).
Bail is a matter of discretion upon conviction by the Regional Trial Court of an dffense not
punishable by death, reclusion perpetua, or life imprisonment (Sec. 5, Rule 114 of the 2000 Revised
Rules on Criminal Procedure).
a.
When is bail a matter of right and when is it a matter of discretion? (2%)
b.
In what forms may bail be given? (2%0
c.
When the accused is entitled as a matter of right to bail, may the Court refuse to grant
him bail on the ground that there exists a high degree of probability that he will abscond or
escape? Explain. (2%)
d.
May the Court require a witness to post bail? Explain your answer. (2%)
SUGGESTED ANSWER:
a.
When Bail is a matter of right:
All persons in custody shall (a) before or after conviction by the metropolitan and municipal trial
courts, and (b) before conviction by the RTC of an offense not punishable by death, reclusion
perpetua or life imprisonment, be admitted to bail as a matter of right, with sufficient sureties, or be
released on recognizance as prescribed by law or Rule 114. (Sec. 4, Rule 114, Rules of Court, as
amended by Circular No. 12-94.)
When bail is a matter of discretion:
Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment, on application of the accused. If the penalty of imprisonment exceeds six years but not
more than 20 years, bail shall be denied upon a showing by the prosecution, with notice to the
accused, of the following or other similar circumstances:
(a)
That the accused is a recidivist, quasi-recidivist or habitual delinquent, or has

committed the crime aggravated by the circumstance of reiteration;
(b)
That the accused is found to have previously escaped from legal confinement,
222
evaded sentence, or has violated the conditions of his bail without valid justification;
(c)
That the accused committed the offense while on probation, parole, or under
conditional pardon;
(d)
That the circumstances of the accused or his case indicate the probability of flight if
released on bail; or
(e)
That there is undue risk that during the pendency of the appeal, the accused may
commit another crime. (Sec. 1, Id.)
b.
Bail may be given by a corporate surety, or through a property bond, cash deposit or
recognizance. (Sec. 1, Id.)
c.
If bail is a matter of right, it cannot be denied on the ground that there exists a high degree
of probability that the accused will abscond or escape. What the court can do is to increase the
amount of the bail. One of the guidelines that the judge may use in fixing a reasonable amount of
bail is the probability of the accused appearing in trial. Sec 9[g], Id.)
d.
Yes. The court may require a witness to post bail if he is a material witness and bail is
needed to secure his appearance. The rules provide that when the court is satisfied, upon proof or
oath, that a material witness will not testify when required, it may, upon motion of either party,
order the witness to post bail in such sum as may be deemed proper. Upon refusal to post bail, the
court shall commit him to prison until he complies or is legally discharged after his testimony is
taken. (Sec. 6, Rule 119, Rules of Court)
Q: Accused was charged with the crime of kidnapping with murder. The information
recommended no bail, the charge being a capital offense which is non-bailable.
After entering a plea of not guilty, accused filed an application for bail. The application was
opposed by the prosecution.
While the prosecution was still presenting evidence in support of its opposition to the
application for bail, the trial judge issued an order fixing bail of P 100,000.00 for the
provisional liberty of accused. The order reads.
"After due consideration of the testimonial and documentary evidence presented by the
prosecution, this Court finds reasonable ground to believe that no strong evidence exists
against accused.
WHEREFORE, the application for bail is granted. Accused is granted bail, which is fixed P
100,000.00, for his provisional liberty."
Did the trial judge act correctly? Why? (1993 Bar Question)
Answer:
No, because since the accused was charged with an offense punishable by reclusion
perpetua or higher, he is not entitled to bail as a matter of right when evidence of guilt is strong. It
was premature for the court to grant bail while the prosecution was still presenting evidence in
support of its opposition to the application for bail. The prosecution had the right to present all
223
evidence to show the guilt of the accused before the court resolved the motion for bail. (People vs.
Sandiego. 26 SCRA 522)
Q: In an Information charging them of Murder, policemen A, B and C were convicted of
Homicide. A appealed from the decision but Band C did not. B started serving his sentence
but C escaped and is at large. In the Court of Appeals, A applied for bail but was denied.
Finally, the Court of Appeals rendered a decision acquitting A on the ground that the
evidence pointed to the NPA as the killers of the victim.
1.
Was the Court of Appeal's denial of As application for bail proper? [2%]
2.
x x x (1998 Bar Question)
SUGGESTED ANSWER:
1.
Yes, the Court of Appeals properly denied A is application for bail. The court had the
discretion to do so. Although A was convicted of homicide only, since he was charged with a capital
offense, on appeal he could be convicted of the capital offense. (Obosa vs. Court of Appeals, 266
SCRA 281.)
ALTERNATIVE ANSWER:
Under Circular No. 2-92, A is entitled to bail because he was convicted of homicide and hence the
evidence of guilt of murder is not strong.
4. Hearing of application for bail in capital offenses
Q: D was charged with murder, a capital offense. After arraignment, he applied for bail. The
trial court ordered the prosecution to present its evidence in full on the ground that only on
the basis of such presentation could it determine whether the evidence of D's guilt was
strong for purposes of bail. Is the ruling correct? Why? (3%) (2002 Bar Question)
SUGGESTED ANSWER:
No, the prosecution is only required to present as much evidence as is necessary to
determine whether the evidence of Ds guilt is strong for purposes of bail. (Rule 114, sec. 8)
Q: Accused was charged with murder. At the hearing of his application for bail, the
prosecution manifested that it was ready to present evidence to prove that the guilt of the
accused is strong. The defense, however, contended that the report and documents/papers
in support of the prosecutors certification of probable cause in the information is sufficient
to determine whether the evidence of guilt is strong, thereby dispensing with the
presentation of the prosecutions evidence.
As Judge, how would you resolve the contention of the defense? Explain. (1996 Bar Question)
Answer:
I would overrule the contention of the defense because the prosecution has the right to
present evidence to prove that evidence of guilt is strong. (Sec. 8 of Rule 114) A hearing in
indispensable.
224

1.
May bail be granted even if what is charged is a capital offense and the evidence of
guilt is strong? Explain.
2.
Boyet was bom on 6 January 1979. On 15 February 1995 he was arrested on a charge
of raping on 14 February 1995 his first cousin Loma, a 13-year old girl. While the
prosecution recommended no bail for Boyet since the evidence against him was strong.
Boyet nevertheless applied for bail.
Should Boyet be granted bail. Explain.
Answer:
1.
Although bail is not a matter of right when the accused is charged with a capital offense and
the evidence of guilt is strong, there are rulings that in exceptional cases, the court has discretion to
grant bail on such cases. (Barinaga vs. Tamin. 226 SCRA 206)
2.
Yes, because a privileged mitigating circumstance will be considered in determining
whether an offense is bailable or not. (Bravo vs. Botja, 134 SCRA 466)
Q: Abraham was charged with homicide in the Regional Trial Court of Manila, Branch 10. The
trial judge issued the corresponding warrant of arrest and fixed the bail at P30,000. Before
Abraham could be arrested, he filed the fixed bail with the Metropolitan Trial Court of
Manila, Branch 3, and the judge thereof approved the same. Was the approval of the bail
irregular? Is the bail invalid? Explain your answers. (1989 Bar Question)
Answer:
No, because the bail should have been filed with the Regional Trial Court of Manila, Branch
10, where the case was pending, or, in the absence or unavailability, of the judge thereof, with
another branch of the same court in Manila. The Metropolitan Trial Court of Manila had no
authority to approve the bail. (Sec. 14 and 16 of Rule 114)
Q: Florentino was charged with bigamy in the Regional Trial Court of Manila, Branch 15. The
trial judge issued the corresponding warrant of arrest and fixed the bail at P12,000.
Subsequently, Florentino was arrested in San Fernando, Pampanga, and detained in the
municipal jail of the said town. He requested the judge of the Municipal Trial Court of San
Fernando, Pampanga, to order his release on a reduced bail. The Municipal Trial Court judge
agreed to reduce the amount of the bail to PI,000 provided that the same be posted in cash,
which the accused did. Was the reduction of the bail proper? Explain. (1989 Bar Question)
Answer:
No, because the Municipal Trial Judge of San Fernando, Pampanga, had no authority to
approve the bail, much less to reduce the amount thereof even if posted in cash. Since Florentino
was arrested in San Fernando, Pampanga, he should have filed the bail with any Regional Trial
Court of said place, and only if there was no judge thereof available could he have filed it with the
Municipal Trial Judge of San Fernando, Pampanga. (Id.)
225
5. Guidelines in fixing amount of bail

A.
B.
C.
D.
involving P5,000.00. Can the court allow D to change his plea? Why? (2%) (2002 Bar
Question)
SUGGESTED ANSWER:
A.
B.
Appeals, 237 SCRA 685 (1994)].
C.
D.
6. Hold departure order & Bureau of Immigration watch list
Q: While window-shopping at the mall on August 4, 2008, Dante lost his organizer including
his credit card and billing statement. Two days later, upon reporting the matter to the credit
card company, he learned that a. one-way airplane ticket was purchased online using his
credit card for a flight to Milan in mid-August 2008. Upon extensive inquiry with the airline
company, Dante discovered that the plane ticket was under the name of one Dina Meril.
Dante approaches you for legal advice.
A. What is the proper procedure to prevent Dina from leaving the Philippines? (2%) (2010
Bar Question)
SUGGESTED ANSWER:
I would advise:
226
(1) The filing of an appropriate criminal action cognizable by the RTC against Dina and the filing in
said criminal action a Motion for the issuance of a Hold Departure Order; (2) thereafter, a written
request with the Commissioner of the Bureau of Immigration for a Watch List Order pending the
issuance of the Hold Departure Order should be filed; (3) then, the airline company should be
requested to cancel the ticket issued to Dina.
Q: After Alma had started serving her sentence for violation of Batas Pambansa Big. 22 (BP
22), she filed a petition of writ of habeas corpus, citing Vaca vs. CA where the sentence of
imprisonment of a party found guilty of violation of BP 22 was reduced to a fine equal to
double the amount of the check involved. She prayed that her sentence be similarly modified
and that she be immediately released from detention. In the alternative, she prayed that
pending determination on whether the Vaca ruling applies to her, she be allowed to post bail
pursuant to Rule 102, Sec. 14, which provides that if a person is lawfully imprisoned or
restrained on a charge of having committed an offense not punishable by death, he may be
admitted to bail in the discretion of the court. Accordingly, the trial court allowed Alma to
post bail and then ordered her release. In your opinion, is the order of the trial court
correct?
a)
xxx
b)
Under the Rules of Criminal Procedure? (2%)
SUGGESTED ANSWER:
b) No. The trial courts order releasing Alma on bail even after judgment against her has become
final and in fact she has started serving sentence, is a brazen disregard of the mandate in Section 24,
Revised Rules of Criminal Procedure that: In no case shall bail be allowed after the accused has
commenced to serve sentence. (People v. Fitzgerald, 505 SCRA 573 [2006]).
G. Rights of the accused
1. Rights of accused at the trial
2. Rights of persons under custodial investigation
Q: What are the requirements in order that an admission of guilt of an accused during a
custodial investigation be admitted in evidence? 2.5% (2006 Bar Question)
SUGGESTED ANSWER:
An admission of guilt during a custodial investigation is a confession. To be admissible in
evidence, the requirements are:
1) the confession must be voluntary
2) the confession must be made with the assistance of competent and independent counsel
3) the confession must be express
4) the confession must be in writing (People v. Principe, 381 SCRA 642 [2002]).
Q: X was arrested for the alleged murder of a 6-year Old lad. He was read his Miranda rights
immediately upon being apprehended.
227
In the course of his detention, X was subjected to three hours of non-stop interrogation. He
remained quiet until, on the 3rd hour, he answered "yes" to the question of whether "he
prayed for forgiveness for shooting down the boy." The trial court) interpreting X's answer
as an admission of guilt, convicted him.
On appeal, X's counsel faulted the trial court in its interpretation of his client's answer,
arguing that X invoked his Miranda rights when he remained quiet for the first two hours of
questioning. Rule on the assignment of error. (3%) (2010 Bar Question)
SUGGESTED ANSWER:
The assignment of error invoked by X's counsel is impressed with merit since there has
been no express waiver of X's Miranda rights. In order to have a valid waiver of the Miranda rights,
the same must be in writing and made in the presence of his counsel. The uncounseled extrajudicial
confession of X being without a valid waiver of his Miranda rights, is inadmissible, as well as any
information derived therefrom.
Q: Policemen brought Lorenzo to the Philippine General Hospital (PGH) and requested one
of its surgeons to immediately perform surgery on him to retrieve a packet of 10 grams of
shabu which they alleged was swallowed by Lorenzo. Suppose the PGH agreed to, and did
perform the surgery, is the package of shabu admissible in evidence? Explain. (3%) (2010
Bar Question)
SUGGESTED ANSWER:
No, the package of shabu extracted from the body of Lorenzo is not admissible in evidence
because it was obtained through surgery which connotes forcible invasion into the body of Lorenzo
without his consent and absent due process. The act of the policemen and the PGH surgeon
involved, violate the fundamental rights of Lorenzo, the suspect.
SUGGESTED ANSWER:
Yes, it is admissible in evidence because the constitutional right against self-incrimination is
addressed only to extracting admission of guilt from the lips of the suspect where otherwise no
incriminating evidence exists. In the past, the Supreme Court has already declared many invasive
and involuntary procedures (i.e. examination of women's genitalia, expulsion of morphine from
one's mouth, DNA testing) as constitutionally sound (See Agustin v. Court o/Appeals, G.R. No.
162571, June 15, 2005).
The accused in a criminal case has the right to avail of the various modes of
discovery. (2009 Bar Question)
[a]
SUGGESTED ANSWER:
TRUE. The accused has the right to move for the production or inspection of material
evidence in the possession of the prosecution. It authorizes the defense to inspect, copy or
photograph any evidence of the prosecution in its possession after obtaining permission from the
court (Rule 116, Sec. 10; Webb v. De Leon, 247 SCRA 652 [1995]).
228
Q: The mutilated cadaver of a woman was discovered near a creek. Due to witnesses
attesting that he was the last person seen with the woman when she was still alive, Carlito
was arrested within five hours after the discovery of the cadaver and brought to the police
station. The crime laboratory determined that the woman had been raped. While in police
custody, Carlito broke down in the presence of an assisting counsel and orally confessed to
the investigator that he had raped and killed the woman, detailing the acts he had performed
up to his dumping of the body near the creek. He was genuinely remorseful. During the trial,
the State presented the investigator to testify on the oral confession of Carlito. Is the oral
confession admissible as evidence, of guilt? (4%) (2008 Bar Question)
SUGGESTED ANSWER:
No, the oral confession is not admissible as evidence of guilt of Carlito because he was
already under arrest and in police custody when he made the extrajudicial confession but the
mandates of Rep. Act No. 7438, particularly Sections 2, par. (d), have not been complied with.
Noncompliance with said par. (d) of the law expressly renders the extrajudicial confession
inadmissible as evidence in any proceeding.
He was not informed of his right to be warned and he was not informed of the Miranda right
particularly the right to remain silent. Additionally, it does not appear that counsel present is his
counsel of his choice.
Q: L was charged with illegal possession of shabu before the RTC. Although bail was
allowable under his indictment, he could not afford to post bail, and so he remained in
detention at the City Jail. For various reasons ranging from the promotion of the Presiding
Judge, to the absence of the trial prosecutor, and to the lack of notice to the City Jail Warden,
the arraignment of L was postponed nineteen times over a period of two years. Twice during
that period, Ls counsel filed motions to dismiss, invoking the right of the accused to a speedy
trial. Both motions were denied by the RTC. Can L file a petition for mandamus? Reason
briefly. (2007 Bar Question)
SUGGESTED ANSWER:
Yes, L can file a petition for mandamus to enforce his ' "institutional right to a speedy trial
which was capriciously denied to him.
There is absolutely no justification for postponing an arraignment of the accused nineteen
(19) times and over a period of two (2) years. The numerous, unreasonable postponements of the
arraignment demonstrate an abusive exercise of discretion (Lumanlaw v. Peralta, 482 SCRA 396
[2006]). Arraignment of an accused would not take thirty minutes of the precious time of the court,
as against the preventive imprisonment and deprivation of liberty of the accused just because he
does not have the means to post bail although the crime charged is bailable.
The right to a speedy trial is guaranteed by the Constitution to every citizen accused of a
crime, more so when he is under preventive imprisonment. L, in the given case, was merely
invoking his constitutional right when a motion to dismiss the case was twice filed by his counsel.
The RTC is virtually enjoined by the fundamental law to respect such right; hence a duty. Having
refused or neglected to discharge the duty enjoined by law whereas there is no appeal nor any
plain, speedy and adequate remedy in the ordinary course of law, the remedy of mandamus may be
availed of.
229
Q: Are the rights of the accused to be presumed innocent of the crime charged, to privacy,
and against incrimination violated by such compulsory testing? Explain.(2005 Bar Question)
SUGGESTED ANSWER:
No. The court may compel the accused to submit himself to a blood test to determine
whether he has HIV under Sec. 17(a) of Republic Act No. 8054. His rights to be presumed innocent
of the crime charged, to privacy and against self-incrimination are not violated by such compulsory
testing. In an action in which the physical condition of a party is in controversy, the court may order
the accused to submit to a' physical examination. The right against self-incrimination refers to
compulsory testimonial compulsion and does not include the body of the accused as evidence when
it may be material (U.S. v. TanTeng, 23 Phil. 145 [1912]; Villaflor v. Summers, 41 Phil. 62 [1920];
Section 1, Rule 28, 1997 Rules of Civil Procedure).
Under Republic Act No. 8353, one may be charged with and found guilty of qualified rape if
he knew on or before the commission of the crime that he is afflicted with Human ImmunoDeficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually
transmissible disease and the virus or disease is transmitted to the victim.
Under Section 17(a) of Republic Act No. 8504 the court may compel the accused to submit
himself to a blood test where blood samples would be extracted from his veins to determine
whether he has HIV.
Q: If the result of such test shows that he is HIV positive, and the prosecution offers such
result in evidence to prove the qualifying circumstance under the information for qualified
rape, should the court reject such result on the ground that it is the fruit of a poisonous tree?
Explain. (8%)(2005 Bar Question)
SUGGESTED ANSWER:
The fruits of the poisonous tree doctrine applies only where the primary source is shown to
have been unlawfully obtained or was the result of an illegal act (People v. Alicando, G.R. No.
117487, 251 SCRA 293 [1995]) Since the rights of the accused are not violated because the
compulsory testing is authorized by law, the result of the testing cannot be considered to be the
fruit of a poisonous tree and can be offered in evidence to prove the qualifying circumstance under
the information for qualified rape under Republic Act No. 8353.
Q: At the scene of a heinous crime, police recovered a man's shorts with blood stains and
strands of hair. Shortly afterwards, a warrant was issued and police arrested the suspect, AA.
During his detention, a medical technician extracted blood sample from his finger and cut a
strand from his hair, despite AAs objections.
During AAs trial for rape with murder, the prosecution sought to introduce DNA
(deoxyribonucleic acid) evidence against AA, based on forensic laboratory matching of the
materials found at the crime scene and AAs hair and blood samples. AAs counsel objected,
claiming that DNA evidence is inadmissible because the materials taken from AA were in
violation of his constitutional right against self-incrimination as well as his right of privacy
and personal integrity.
Should the DNA evidence be admitted or not? Reason. (5%)
SUGGESTED ANSWER:
230
Yes. The DNA evidence should be admitted. It is not in violation of the constitutional right
against self- incrimination or his right of privacy and personal integrity. The right against selfincrimination is applicable only to testimonial evidence. Extracting a blood sample and cutting a
strand from the hair of the accused are purely mechanical acts that do not involve his discretion nor
require his intelligence. (Tijing v. Court of Appeals, 354 SCRA 17 [2001]).
Q: Sgt. GR of WPD arrested two NPA suspects, Max and Brix, both aged 22, in the act of
robbing a grocery in Ermita. As he handcuffed them he noted a pistol tucked in Max's waist
and a dagger hidden under Brixs shirt, which he promptly confiscated.
At the police investigation room. Max and Brix orally waived their right to counsel and to
remain silent. Then under oath, they freely answered questions asked by the police desk
officer. Thereafter they signed their sworn statements before the police captain, a lawyer.
Max admitted his part in the robbery, his possession of a pistol and his ownership of the
packet of shabu found in his pocket. Brix admitted his role in the robbery and his possession
of a dagger. But they denied being NPA hit men. In due course, proper charges were filed by
the City Prosecutor against both arrestees before the MM Regional Trial Court.
May the written statements signed and sworn to by Max and Brix be admitted by the trial
court as evidence for the prosecution? Reason. (5%) (2004 Bar Question)
SUGGESTEDANSWER:
No. The sworn written statements of Max and Brix may not be admitted in evidence,
because they were not assisted by counsel. Even if the police captain before whom they signed the
statements was a lawyer, he was not functioning as a lawyer, nor can he be considered as an
independent counsel. Waiver of the right to a lawyer must be done in writing and in the presence of
independent counsel. (People v. Mahinay, 302 SCRA 455 [1999]; People v. Espiritu, 302 SCRA
533 [1999]).
Q: Acting on a tip by an informant, police officers stopped a car being driven by D and
ordered him to open the trunk. The officers found a bag containing several kilos of cocaine.
They seized the car and the cocaine as evidence and placed D under arrest. Without advising
him of his right to remain silent and to have the assistance of an attorney, they questioned
him regarding the cocaine. In reply, D said, I dont know anything about it. It isnt even my
car. D was charged with illegal possession of cocaine, a prohibited drug. Upon motion of D,
the court suppressed the use of cocaine as evidence and dismissed the charges against him.
D commenced proceedings against the police for the recovery of his car. In his direct
examination, D testified that he owned the car but had registered it in the name of S friend
for convenience. On cross-examination, the attorney representing the police asked, After
your arrest, did you not tell the arresting officers that it wasn't your car? If you were Ds
attorney, would you object to the question? Why? (5%)
SUGGESTED ANSWER:
Yes, because his admission made when he was questioned after he was placed under arrest
was in violation of his constitutional right to be informed of his right to remain silent and to have
competent and independent counsel of his own choice. Hence, it is inadmissible in evidence.
[Constitution, Art. Ill, sec. 12; R.A. 7438 (1992), sec. 2; People v. Mahinay, 302 SCRA 455].
231
ALTERNATIVE ANSWER:
Yes, because the question did not lay the predicate to justify the cross-examination
question.
Q: The barangay captain reported to the police that X was illegally keeping in his house in
the barangay an Armalite M16 rifle. On the strength of that information, the police
conducted a search of the house of X and indeed found said rifle. The police raiders seized
the rifle and brought X to the police station. During the investigation, he voluntarily signed a
Sworn Statement that he was possessing said rifle without license or authority to possess,
and a Waiver of Right to Counsel. During the trial of X for illegal possession of firearm, the
prosecution submitted in evidence .the rifle. Sworn Statement and
Waiver of Right to
Counsel. Individually rule on the admissibility in evidence of the:
a)
xxx
b)
Sworn Statement; and (2%]
c)
Waiver of Right to Counsel of X. [1%] (1998 Bar Question)
SUGGESTED ANSWER:
1.
xxx
2.
The sworn statement is not admissible in evidence because it was taken without informing
him of his custodial rights and without the assistance of counsel which should be independent and
competent and preferably of the choice of the accused. (People vs. Januario, 267 SCRA 608.)
3.
The waiver of his right to counsel is not admissible because it was made without the
assistance of counsel of his choice. {People vs. Gomez, 270 SCRA433.)
Q: A was accused of homicide for the killing of B. During the trial, the public prosecutor
received a copy of the marriage certificate of A and B. (1997 Bar Question)
Can the public prosecutor move for the amendment of the information to charge A
with the crime of parricide?
a)
Suppose instead of moving for the amendment of the information, the public
prosecutor presented in evidence the marriage certificate without objection on the part of
the defense, could A be convicted of parricide?
b)
Answer:
a)
No. The information cannot be amended to change the offense charged from homicide to
parricide. Firstly, the marriage is not a supervening fact arising from the act constituting the charge
of homicide. (Sec. 7(al of Rule 117). Secondly, after plea, amendments may be done only as to
matters of form. The amendment is substantial because it will change the nature of the offense.
(Sec. 14 of Rule 110; Dionaldo us. Dacuycuy, 108 SCRA 736).
b)
No. A can be convicted only of homicide not of parricide which is a graver offense. The
accused has the constitutional rights or due process and to be informed of the nature and the cause
of the accusation against him. (Secs. 1, 14 (1) and (2) Art. Ill, 1387 Constitution).
232
Q: Accused was charged with estafa and pleaded not guilty thereto. The prosecution
repeatedly sought and obtained postponements over the objection of the accused who
invoked his right to speedy trial. At the succeeding hearing, the prosecution again sought
postponement on the ground that the complainant, its only witness, was out of the country.
If you were counsel of the accused, what course of action would you-take in order that the
case against him will be finally dismissed by the court? (1996 Bar Question)
Answer:
I would object to any further postponement, insist on a trial and move for dismissal on the
ground of the right of the accused to a speedy trial. The dismissal in such a case bars a subsequent
prosecution for the same offense.
Q: X, the accused, was called by the prosecution as the first witness to testify for the
government. X refused to take the stand invoking his privilege against self-incrimination. On
the other hand, the prosecution contends that X may be compelled to take the witness stand
and claim the privilege only as each question, requiring an incriminatory answer is put to
him.
Can the court order X to testify? Explain. (1996 Bar Question)
Answer:
No, the court cannot order X to testify because he is the accused and he is exempt from
being compelled to be a witness against himself (Sec. 1-E of Rule 115; Cabal vs. Kapunan, 6 SCRA
1059; Chavez vs. Court of Appeals 24 SCRA 663). If he were an ordinary witness, not an accused, he
could be ordered to testify and he could claim the privilege against self-incrimination only as each
question requiring an incriminatory answer is put to him. (Badiong vs. Gonzales, 94 SCRA 906)
Q: At the homicide trial, the prosecution proposed that accused Joey undergo a series of
paraffin tests to determine whether he fired his service pistol at the time the victim, Lyn, was
shot to death. The defense objected on the ground that Joey's submission of his hands for
paraffin test, or the Inspection of any part of his body for that matter, would violate his right
against self-incrimination. (1994 Bar Question)
1)
How would you rule on the objection?
2)
Is the result of the paraffin test admissible in evidence?
Answer:
1)
The objection should be overruled. Submission to the paraffin test is not a violation of the
right against self-incrimination because it involves only an examination of a part of the body. What
violates the right against self-incrimination is testimonial compulsion.
2)
The result of the paraffin test is admissible in evidence although it is not conclusive and is
not the only evidence that should be considered.
Q: During custodial investigation at the Western Police District, Mario Margal was informed
of his constitutional right to remain silent and to have competent and independent counsel.
He decided to waive his right to counsel and proceeded to make a statement admitting
233
commission of a robbery. In the same statement, he Implicated Antonio Carreon, his coconspirator in the crime. (1991 Bar Question)
(a)
Is Margals statement admissible in evidence against him?
Answer:
(a)
No, because under the Constitution, the right of Margal to remain silent and to counsel
during custodial investigation cannot be waived except in writing and in the presence of counsel,
and any confession or admission in violation of this provision is inadmissible in evidence against
him. (Sec. 12 of Art. I l l )
(b)
Is it admissible against Carreon as an exception to the res inter alios acta rule?
Answer:
No, because even assuming that the conspiracy is shown by evidence other than the
statement of Margal, the statement was made after the conspiracy had ceased. (Sec. 30 of Rule 130;
People v. Cabrera. 57 SCRA 714)
Q: Felipe Arenas, an employee of ABC Corp., appeared to be involved, in irregularities in the
sale of the corporations products. He was asked to account for some undeclared sales
amounting to PI50.000.00 and, for that purpose, he was asked to appear on a specified date
at an administrative investigation, to be conducted in accordance with the corporations
collective bargaining agreement with the employees union. Two (2) days before the
scheduled investigation. Arenas gave to his superiors a signed handwritten note stating that
he was willing to settle the irregularities allegedly charged against him in the amount of
PI50.000.00 subject to conditions which the corporation may impose. On the day of the
investigation, Arenas did not show up and has failed to report for work since then. The
corporation charged him with estafa. At the trial, the prosecution offered in evidence the
aforesaid handwritten note as Exhibit A". The defense counsel objected to the admission of
the note on the ground that the same was executed without the accused having been
informed of his constitutional right to remain silent and to have counsel nor was he then
assisted by counsel. If you were the judge, would you admit the evidence? (1991 Bar
Question)
Answer:
Yes, the signed handwritten note of Arenas, given two days before the scheduled
administrative investigation, is admissible in evidence against him, because he was not under
custodial investigation when he executed the same. Hence, the constitutional right to remain silent
and to have counsel was not applicable to him. (People v. Ayson, 175 SCRA 216)
Q: During the custodial investigation of Jose Zafra, a murder suspect, he was informed of his
right to be assisted by counsel, among other constitutional rights. Zafra requested the
assistance of Atty. Donato Saldi who was present when Zafra gave his confession. When the
case for murder was filed against him. Zafra objected to the admission of his confession on
the ground that he had inadequate assistance of counsel as Atty. Saldi did not advise him to
remain silent during the Investigation.
Is the said objection tenable? Explain your answer. (1990 Bar Question)
234
Answer:
No, because Jose Zafra was already informed of his right to be assisted by counsel, among
other constitutional rights which include the right to remain silent. Atty. Saldi had no obligation to
advise him to remain silent during his investigation.
H. Arraignment and plea
1. Arraignment and plea, how made
Q: X was charged with murder attended by treachery and evident premeditation. During
arraignment X, assisted by counsel, pleaded guilty with the qualification Hindi ko sinadya
patayin. Xs counsel assured the court that he fully apprised X of the information, the nature
of the charge, and the consequences of his plea. X even waived the prosecutions
presentation of evidence against him. The court convicted X of murder.
a)
Was the plea of guilty entered valid? Explain.
b)
May the prosecution dispense with the presentation of evidence despite the
waiver of the accused? Explain. (1996 Bar Question)
Answer:
a) No, the plea of guilty by X with the qualification Hindi ko sinadya patayin was a conditional plea
of guilty and hence a plea of not guilty should be entered for him. (Sec. 1-C of Rule 116)
Alternative Answer:
No, because when the accused pleads guilty to a capital offense, the court shall conduct a searching
inquiry into the voluntariness and full comprehension of the consequences of his plea. The court
should not rely on the assurance of the Counsel of the accused for this purpose. (Sec. 3 of Rule 116)
b)
No, the court should require the prosecution to prove the guilt and precise degree of
culpability of the accused. (Id.)
2. When may accused enter a plea of guilty to a lesser offense
A.
B.
C.
D.
involving P5,000.00. Can the court allow D to change his plea? Why? (2%) (2002 Bar
235
Question)
SUGGESTED ANSWER:
A.
B.
Appeals, 237 SCRA 685 (1994)].
C.
D.
3. Accused pleads guilty to capital offense, what the court should do
Q: Crisanto Is charged with murder. At his arraignment the prosecution witnesses appeared
in court together with the heirs of the victim. Realizing the gravity of the offense and the
number of witnesses against him Crisanto consulted his counsel de oficio who explained to
him the nature of the charge and the consequences of his plea. Crisanto then manifested his
readiness for arraignment. The Information was read to him in a language he clearly
understood after which he pleaded guilty. To be sure, the judge forthwith asked him if
indeed he fully understood the implications of his plea and Crisanto readily and without
hesitation answered in the affirmative. The judge, fully convinced that the plea of the
accused was made with the tatter's full knowledge of the meaning and consequences of his
plea, then pronounced sentence on the accused.
1.
Comment on the action of the judge. Explain.
2.
Suppose Crisanto with the assistance of counsel waives the presentation of evidence
by the prosecution saying that, after all, he has already entered his plea, may the court insist
on the presentation of the evidence for the prosecution? Explain.
3.
Suppose upon plea bargaining Crisanto decides to plead guilty to the lesser offense of
homicide, may the court still require presentation of evidence? Explain.
4.
After the Information was read to Crisanto upon arraignment and he pleaded guilty
to the charge but the facts did not sufficiently constitute an offense, did his plea of guilt,
which has already been entered in the records, have the effect of supplying what was not
alleged in the Information to complete the elements of the offense to Justify his conviction?
Explain. (1995 Bar Question)
Answer:
The Judge erred in pronouncing sentence on the accused without previously conducting a
searching inquiry into the voluntariness and full comprehension of the consequences of the plea of
236
guilty and requiring the prosecution to prove the guilt and the precise degree of culpability. (Sec. 3,
Rule 116)
1.
Yes, in accordance with the above rule.
2.
Although Crisanto pleads guilty to a non-capital offense the court may still require evidence
to determine the penalty to be imposed. (Sec. 4, Rule 116)
3.
No, his plea of guilty did not have the effect of supplying what was not alleged In the
Information to complete the elements of the offense to justify his conviction. His plea merely admits
the truth of the facts alleged in the information.
4. Searching inquiry
Q: Charged with the crime of murder before the Regional Trial Court of Bulacan, the accused,
assisted by counsel, pleaded guilty to the charge. Thereupon, the trial court rendered a
judgment convicting the accused for the crime of murder and sentencing him to suffer
reclusion perpetua and to pay civil indemnity to the heirs of the victim.
Did the trial court act properly? Why? (1993 Bar Question)
Answer:
Yes, because it is only when the accused is charged with a capital offense punishable with
death that the court shall conduct a searching inquiry Into the voluntariness and full
comprehension of the consequences of the plea of guilty and require the prosecution to prove his
guilt and the precise degree of culpability. The crime charged of murder is not a capital offense,
because the death penalty cannot be imposed under the Constitution.
I. Motion to quash
1. Grounds
1.
Give two (2) grounds to quash an Information. [2%]
2.
If the Information is not accompanied by a certification that a preliminary
investigation has been conducted, is the Information void? [3%]
SUGGESTED ANSWER:
1.
Two grounds to quash an Information are:

(a)
That the facts charged do not constitute an offense; and
(b)
That the court trying the case has no jurisdiction over the offense charged or the
person of the accused.
Note: The other grounds are:

(c)
That the officer who filed the Information had no authority to do so;
(d)
That It does not conform substantially to the prescribed form;

237
(e)
That more than one offense Is charged except In those cases in which existing laws
prescribe a single punishment for various offenses;
(f)
That the criminal action or liability has been extinguished;
(g)
That It contains averments which. If true, would constitute a legal excuse or Justification; and
(h)
That the accused has been previously convicted or In Jeopardy of being convicted,
or acquitted of the offense charged. (Sec. 3, Rule 117, Rules of Criminal Procedure.)
No. The certification which is provided In Sec. 4, Rule 112, Rules of Criminal Procedure,
Is not an indispensable part of the information. (People us. Lapura, 255 SCRA 85.)
2.
Q: The information filed against A charged more than one offense. A has not yet been
arraigned. If you were the lawyer of A, would you file a motion to quash or a motion for bill
of particulars? Explain. (1996 Bar Question)
Answer:
I would file a motion to quash on the ground that more than one offense is charged. (Sec. 1-e
of Rule 117). A motion for bill of particulars is not proper because there are no defects or details in
the information that need clarification. (Sec. 10 of Rule 116)
Q: Rodolfo is charged with possession of unlicensed firearms in an information filed in the
Regional Trial Court. It was alleged therein that Rodolfo was in possession of two unlicensed
firearms: a .45 caliber and a .32 caliber.
Under Republic Act No. 8294, possession of an unlicensed 45 caliber gun is punishable by
prision mayorin its minimum period and a fine of P30.00Q.00. while possession of an
unlicensed .32 caliber gun is punishable by prision correctional in its maximum period and a
fine of not less than PI 5,000.00.
As counsel of the accused, you intend to file a motion to quash the Information. What ground
or grounds should you invoke? Explain. (4%) (2005 Bar Question)
SUGGESTED ANSWER:
The ground for the motion to quash is that more than one offense is charged in the
information (Sec. 3[f], Rule 117, 2000 Rules of Criminal Procedure). Likewise, the RTC has no
jurisdiction over the second offense of possession of an unlicensed .32 caliber gun, punishable by
prision correccional in its maximum period and a fine of not less than P15,000.00, It is the MTC that
has exclusive and original jurisdiction over offenses punishable by imprisonment not exceeding six
years. (Sec. 2, Republic Act No. 7691 [1994], amending Sec. 32, B.P. Big. 129) [1980]
Q: The information filed against A charged more than one offense. A has not yet been
arraigned. If you were the lawyer of A, would you file a motion to quash or a motion for bill
of particulars? Explain. (1996 Bar Question)
Answer:
I would file a motion to quash on the ground that more than one offense is charged. (Sec. 1-e
238
of Rule 117). A motion for bill of particulars is not proper because there are no defects or details in
the information that need clarification. (Sec. 10 of Rule 116)
Q: Mario, a resident of Quezon City, sued for libel the editor, publisher and columnist of Ang
Bagong Pilipino, a newspaper of general circulation, with principal office at Binondo, Manila.
He claimed that because his reputation had been badly besmirched by the offensive article
he suffered damages estimated at 1 Million. The case was filed before the Regional Trial
Court of Quezon City.
The accused moved to quash the Information on the ground that the RTC had no jurisdiction
to try the case considering that under Sec. 2 of RA. 7691 Metropolitan Trial Courts exercise
exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding
six (6) years (of which libel is one) irrespective of the amount of fine, accessory or other
penalties or civil liability arising from the offense. The accused also claimed that the
offensive article was printed and first published in Manila so that the case should have been
filed with the Metropolitan Trial Court of Manila. Decide. Discuss fully. (1995 Bar Question)
Answer:
The motion to quash should be granted on two grounds, namely:
Since the libelous article was printed and first published in Manila, the Regional
Trial Court of Quezon City has no jurisdiction over the offense. (Art. 360, RPC as amended;
Agbayani vs. Sayo, 89 SCRA 699; Soriano vs. IAC, 167 SCRA 222)
1.
Since the penalty provided by law for libel does not exceed six (6) years, the
Metropolitan Trial Court of Manila has exclusive jurisdiction.
2.
Alternative Answer:
Art. 360, RPC as amended, expressly vests the RTC with jurisdiction over libel cases. This
special provision should prevail over RA. 7691.
Q: Chato is charged with the murder of Velay. Before arraignment, you, as counsel de oficio
of Chato, discovered that the information failed to allege any qualifying circumstances.
How may you properly object to the Insufficiency of the information, and on what
ground?
1)
2)
May you still avail of that remedy after Chato has entered her plea?
What course or courses of action may the court take if it sustains the remedy you
seek? (1994 Bar Question)
3)
Answer:
1)
As counsel de oficio for the accused, I can file a motion to quash based on the ground that
the facts charged do not constitute the crime of murder there being no qualifying circumstances
alleged. (Sec. 3(a), Rule 117)
Alternative Answer:
239
As counsel de oficio for the accused, I will not file a motion to quash because it will only
aggravate the crime charged. As it is charged, Chato can be convicted only of homicide.
2)
After Chato has entered her plea, she may no longer move to quash because she is barred
from doing so. (Sec. 1, Rule 117).
3)
If the court sustains the motion to quash, the court may order that another information be
filed. If the accused is in custody, he shall remain so unless he shall be admitted to bail. If the
information is not filed within the time specified, or within the time specified in the order, or within
such further time as the court may allow for good cause shown, the accused, if in custody, shall be
discharged therefrom, unless he is also in custody on some other charge. (Sec. 5. Rule 117).
Q: An information was filed, in the proper court against Arturo charging him with theft of
300 blocks of industrial aluminum worth P999.000.00 allegedly committed on or about the
period from January 1986 to December 23,1991. Arturo filed a motion to quash the
information on the ground that it was grossly insufficient and fatally defective since there is
such a great gap in the inclusive period of the alleged commission of the offense. He is, in
effect, being deprived of a reasonable opportunity to defend himself.
In resolving the motion to quash, what basic and ancillary rulings should the court make so
that it can extend to the accused optimum and adequate relief. Discuss fully. (1992 Bar
Question)
Suggested Answer:
The court may grant the motion to quash on the ground that the allegation of the time of
commission of the offense is defective because the period from January 1986 to December 23. 1991,
or almost six years, is too indefinite to give the accused an opportunity to prepare-his defense; or
the court may order the amendment of the information or the submission of a bill of particulars so
as to allege the actual date or at least as near to it as possible in order not to surprise and
substantially prejudice the accused.
2. Exception to the rule that sustaining the motion is not a bar to another prosecution
Q: On October 14, 1990, Julie was charged before the Metropolitan Trial Court of Quezon City
with the crime of serious slander allegedly committed on May 12, 1990.
After trial, the court found that Julie had committed the crime oflight-not serious-slander.
Accordingly, it convicted Julie of light slander and sentenced her to pay a fine of P100.00
plus moral damages, attorneys fees and costs.
On appeal, Julie contended that she may not be convicted of the crime of light slander
because it has already prescribed.
However, the prosecution countered that as Julie did not move for the quashal of the
information on the ground of prescription, she is deemed to have waived such defense.
How should the appeal be resolved? Explain. (1993 Bar Question)
Answer:
240
The appeal should be resolved in favor of Julie. Under the 1985 Rules on Criminal Procedure
as amended, prescription is not deemed waived for failure of the accused to assert such ground of a
motion to quash before he pleads to a complaint or information and such ground may be raised on
appeal.. (Damasco us. Laqut 166 SCRA 214)
Alternative Answer:
The appeal should be resolved against Julie because the filing of the complaint with the
fiscals office in 1990 interrupted the period of prescription of the offense charged. (Note: This was
before the case of Zaldivia v. Reyes. 211 SCRA 277).
3. Double jeopardy
Q: What is res judicata in prison grey"? (2%)
SUGGESTED ANSWER:
Res judicata in prison grey" is the criminal concept of double jeopardy, as res judicata" is
the doctrine of civil law (Trinidad v. Office of the Ombudsman, GR No. 166038, December 4, 2007).
Described as res judicata in prison grey, the right against double jeopardy prohibits the
prosecution of a person for a crime of which he has been previously acquitted or convicted. The
.purpose is to set the effects of the first prosecution forever at rest, assuring the accused that he
shall not thereafter be subjected to the danger and anxiety of a second charge against him for the
same offense (Joel B. Caes v. Intermediate Appellate Court, November 6, 1989).
Q: When a criminal case is dismissed on nolle prosequi, can it later be refiled? (2003 Bar
Question)
SUGGESTED ANSWER:
As a general rule, when a criminal case is dismissed on nolle prosequi before the accused is
placed on trial and before he is called on to plead, this is not equivalent to an acquittal and does not
bar a subsequent prosecution for the same offense. (Galvez v. Court of Appeals, 237 SCRA 685
[1994]).
Q: In a case of a prosecution of an accused for estafa after his acquittal of the crime of illegal
recruitment, but which Involves the same set of facts as the first case, can the accused raise
the defense of double Jeopardy? How about res adjudicata? (1994 Bar Question)
Answer:
No. The accused cannot raise the defense of double jeopardy because the offenses of estafa
and illegal recruitment are separate offenses even though they involve the same set of facts.
Res adjudicata is not applicable in the case at bar.
Q: For the multiple stab wounds sustained by the victim, Noel was charged with frustrated
homicide in the Regional Trial Court. Upon arraignment, he entered a plea of guilty to said
crime. Neither the court nor the prosecution was aware that the victim had died two days
earlier on account of his stab wounds.
241
Because of his guilty plea, Noel was convicted of frustrated homicide and meted the
corresponding penalty. When the prosecution learned of the victims death, it filed within
fifteen {15) days therefrom a motion to amend the Information to upgrade the charge from
frustrated homicide to consummated homicide. Noel opposed the motion claiming that the
admission of the amended Information would place him in double jeopardy.
SUGGESTED ANSWER:
Amending the information from frustrated homicide to consummated homicide does not
place the accused in double jeopardy. The conviction of the accused shall not be a bar to another
prosecution for an offense which necessarily includes the offense charged in the former complaint
or information when (a) the graver offense developed due to supervening facts arising from the
same act or omission constituting the former charge; or (b) the facts constituting the graver charge
became known or were discovered only after a plea was entered in the former complaint or
information. (Sec. 7, second par., Rule 117,2000 Rules of Criminal Procedure). Here, when the plea
to frustrated homicide was made, neither the court nor the prosecution was aware that the victim
had died two days earlier on account of his stab wounds.
The case falls under (b), since the facts constituting the graver charge became known or
were discovered only after a plea was entered in the former complaint or information.
Q: D was charged with slight physical injuries in the MTC. He pleaded not guilty and went to
trial. After the prosecution had presented its evidence, the trial court set the continuation of
the hearing on another date. On the date scheduled for hearing, the prosecutor failed to
appear, whereupon the court, on motion of D, dismissed the case. A few minutes later, the
prosecutor arrived and opposed the dismissal of the case. The court reconsidered its order
and directed D to present his evidence. Before the next date of trial came, however, D moved
that the last order be set aside on the ground that the reinstatement of the case had placed
him twice in jeopardy. Acceding to this motion, the court again dismissed the case. The
prosecutor then filed an information in the RTC, charging D with direct assault based on the
same facts alleged in the information for slight physical injuries but with the added
allegation that D inflicted the injuries out of resentment for what the complainant had done
in the performance of his duties as chairman of the board of election inspectors. D moved to
quash the second information on the ground that its filing had placed him in double
jeopardy. How should D's motion to quash be resolved? (4%) (2002 Bar Question)
SUGGESTED ANSWER:
Ds motion to quash should be granted on the ground of double jeopardy because the first
offense charged is necessarily included in the second offense charged. [Draculan v. Donato, 140
SCRA 425 (1985)].
ALTERNATIVE ANSWER:
Ds motion to quash should be denied because the two dismissals of the case against him
were on his motion (hence with his express consent) and his right to a speedy trial was not
violated.
Q: For firing a machine gun which caused panic among the people present and physical
242
injuries to one, two separate informations (one for serious public disturbance and the other
for reckless imprudence resulting in physical injuries) were filed against the accused.
As he pleaded guilty to the charge of reckless imprudence resulting in physical injuries, the
accused was convicted and sentenced accordingly.
Later, the accused sought to dismiss the charge of serious public disturbance-on the ground
of double jeopardy.
Is there double Jeopardy? Why? (1993 Bar Question)
Answer:
No, because the protection against double Jeopardy is only for the same offense. A single act
may be an offense against two different provisions of law and if one provision requires proof of an
additional fact which the other does not, an acquittal, or conviction under one does not bar prosecution under the other.
In this case, the act of firing a machine gun violated two articles of the Revised Penal Code.
Consequently, conviction for one does not bar prosecution for the other. (People vs. Bacolod, 89
Phil. 621)
Alternative Answer:
Yes, because only one offense of reckless imprudence resulting in physical injuries and
serious public disturbance was committed.
Q: George was charged with falsification. On the date of initial trial, the fiscal moved for
postponement on the ground that the case had been assigned to a special prosecutor of the
Department of Justice who was out of town to attend to an urgent case, and who had wired
him to request for postponement. The fiscal manifested that he was not ready for trial
because he was unfamiliar with the case. The judge then asked the accused as well as his
counsel whether they were amenable to a postponement. Both George and his counsel
insisted on a trial. The judge ordered the case dismissed.
Upon learning thereof, the special prosecutor filed a petition for certiorari under Rule 65 of
the Rules of Court alleging that the dismissal was capricious and deprived the Government of
due process. George opposed the petition, invoking double jeopardy.
(a)
Is double jeopardy a bar to the petition? Explain.
(b)
Suppose that trial on the merits had in fact proceeded and the trial judge, finding the
evidence to be insufficient, dismissed the case, would your answer be the same? Explain.
(1988 Bar Question)
Answer:
(a)
No, because this is not an appeal by the prosecution asserting a dismissal to be erroneous.
It is a petition for certiorari which assails the order of dismissal as invalid and a nullity because it
was capricious and deprived the Government of due process. Considering that this was the first
motion for postponement of the trial filed by the fiscal and the ground was meritorious, the judge
gravely abused his discretion in ordering the case dismissed. If there is no valid dismissal or
termination of the case, there is no basis for invoking double jeopardy. (People vs. Gomez, 20 SCRA
293)
243
(b)
No, because in such a case, the order of dismissal would be valid, even if erroneous, and
would be tantamount to an acquittal.
Q: The accused pleaded not guilty to the charge of less serious physical injuries. Before
judgment, the fiscal moved that he be allowed to file a new information against the accused
for the graver crime of frustrated murder it appearing that the injuries were inflicted with
intent to kill. The defense objected upon the ground that the charge for less serious physical
injuries is included in the offense of frustrated murder and since he had already pleaded to
the lesser charge, the filing of a new information would constitute second jeopardy. The
prosecution replied that there would be no double jeopardy as the complaint will be
dismissed upon the filing of the information for frustrated murder, pursuant to Sec. 11, Rule
119 of the 1985 rules on Criminal Procedure relevant to situations when mistake has been
made in charging the proper offense. The fiscal argued that the fact of the accused's intent to
kill was discovered by the prosecution and the complainant only during the trial of the case.
(a) Resolve the motion. Reasons.
(b) Suppose the intent to kill is indicated in the affidavits of the witnesses for the
complainant which were the basis for the filing of the complaint, would your resolution be
different and if so, why? (1987 Bar Question)
Answer:
(a)
Motion denied. The charge of less serious physical injuries is necessarily included in the
offense of frustrated murder and under Sec. 11 of Rule 119 of the 1985 Rules on Criminal
Procedure, the dismissal of the original case upon the filing of the new one can only be done if the
accused cannot be convicted of the offense charged. In this case the accused can be convicted of less
serious physical injuries. Moreover, the dismissal of the original complaint upon the filing of a new
one charging the proper offense can only be done provided the accused would not be placed in
double jeopardy. In this case the accused would be placed in double jeopardy. (Sec. 14 of Rule 110;
People vs. Mogul, 131 SCRA 296)
(b)
Motion denied. With more reason should the motion be denied if the intent to kill is
indicated in the affidavits which were the basis for the filing of the complaint, because not only is
the intent to kill not a new supervening fact, but it is not even a subsequently discovered fact. (Sec.
7 of Rule 117)
(a)
Motion granted. While intent to kill is not a new supervening fact which constitutes an
exception to the rule on identity of offenses in double jeopardy (People vs. Besa, 74 Phil. 57), an
additional exception has been added in the 1985 Rules on Criminal Procedure; namely, when the
facts constituting the graver charge became known or were discovered only after the filing of the
former complaint or information. In this case, the intent to kill was discovered only during the trial
of the case, and hence, a new complaint may be filed for frustrated murder without placing the
accused in double jeopardy* (Sec. 7 (b) of Rule 117)
244
(b)
Motion denied. The resolution would be different, because in such case the intent to kill
would not fall under the additional exception of subsequently discovered fact.
4. Provisional dismissal
Q: Before the arraignment for the crime of murder, the private complainant executed an
Affidavit of Desistance stating that she was not sure if the accused was the man who killed
her husband. The public prosecutor filed a Motion to Quash the Information on the ground
that with private complainants desistance, he did not have evidence sufficient to convict the
accused. On 02 January 2001, the court without further proceedings granted the motion and
provisionally dismissed the case. The accused gave his express consent to the provisional
dismissal of the case. The offended party was notified of the dismissal but she refused to give
her consent.
Subsequently, the private complainant urged the public prosecutor to refile the murder
charge because the accused failed to pay the consideration which he had promised for the
execution of the Affidavit of Desistance. The public prosecutor obliged and refiled the
murder charge against the accused on 01 February
2003. The accused filed a Motion to Quash the Information on the ground that the
provisional dismissal of the case had already become permanent.

(a)
Was the provisional dismissal of the case proper?
(b)
Resolve the Motion to Quash. (2003 Bar Question)
SUGGESTED ANSWER:
(a)
The provisional dismissal of the case was proper because the accused gave his
express consent thereto and the offended party was notified. It was riot necessary for the
offended party to give her consent thereto. (Sec. 8 of Rule 117).
(b)
The motion to quash the information should be denied because, while the provisional
dismissal had already become permanent, the prescriptive period for filing the murder charge had
not prescribed. There was no double jeopardy because the first case was dismissed before the
accused had pleaded to the charge. (Sec. 7 of Rule 117).
ANOTHER ANSWER:
(b)
The motion to quash the information should be denied because the dismissal has become
permanent. Provisional dismissal shall become permanent two years after issuance of the order
and two years have lapsed in this case (Sec. 8, Rule 117).
Q: After the requisite proceedings, the Provincial Prosecutor filed an Information for
homicide against X. The latter, however, timely filed a Petition for Review of the Resolution
of the Provincial Prosecutor with the Secretary of Justice who, in due time, issued a
Resolution reversing the resolution of the Provincial Prosecutor and directing him to
withdraw the Information.
Before the Provincial Prosecutor could comply with the directive of the Secretary of Justice,
the court issued a warrant of arrest against X.
245
The Public Prosecutor filed a Motion to Quash the Warrant of Arrest and to Withdraw the
Information, attaching to it the Resolution of the Secretary of Justice. The court denied the
motion.
(a) Was there a legal basis for the court to deny the motion?
(b) If you were the counsel for the accused, what remedies, if any, would you pursue?
(2003 Bar Question)
SUGGESTED ANSWER:
a. Yes, there is a legal basis for the court to deny the motion to quash the warrant of arrest and
to withdraw the information. The court is not bound by the Resolution of the Secretary of
Justice. (Crespo v. Mogul, 151 SCRA 462 [1987]).
b. If I were the counsel for the accused, I would surrender the accused and apply for bail
because the offense is merely homicide, a non-capital offense. At the pre-trial, I would make
a stipulation of facts with the prosecution which would show that no offense was
committed.
Q: In a prosecution for robbery against D, the prosecutor moved for the postponement of the
first scheduled hearing on the ground that he had lost his records of the case. The court
granted the motion but, when the new date of trial arrived, the prosecutor, alleging that he
could not locate his witnesses, .moved for the provisional dismissal of the case. If D's counsel
does not object, may the court grant the motion of the prosecutor? Why? (3%) (2002 Bar
Question)
SUGGESTED ANSWER:
A.
No, because a case cannot be provisionally dismissed except upon the express consent of
the accused and with notice to the offended party. (Rule 117, sec. 8).
Q: BC is charged with illegal possession of firearms under an Information signed by a
Provincial Prosecutor. After arraignment but before pre-trial, BC found out that the
Provincial Prosecutor had no authority to sign and file the information as it was the City
Prosecutor who has such authority. During the pre-trial, BC moves that the case against him
be dismissed on the ground that the Information is defective because the officer signing it
lacked the authority to do so. The Provincial Prosecutor opposes the motion on the ground
of estoppel as BC did not move to quash the Information before arraignment. If you are
counsel for BC. What is your argument to refute the opposition of the Provincial Prosecutor?
SUGGESTED ANSWER:
I would argue that since the Provincial Prosecutor had no authority to file the information,
the court did not acquire Jurisdiction over the person of the accused and over the subject matter of
the offense charged. (Cudia v. Court of Appeals, 284 SCRA 173 [1999]. Hence, this ground is not
waived if not raised in a motion to quash and could be raised at the pre-trial. (Sec 8, Rule 117, Rules
of Court).
246
J. Pre-trial
Q: Is pre-trial mandatory in all trial courts? Explain. (1989 Bar Question)
Answer:
Pre-trial is mandatory in all trial courts in civil cases. (Sec. 1 of Rule 30). However, in
criminal cases, pre-trial may be held only when the accused and his counsel agree. (Sec. 1 of Rule
118).
In summary procedure, a preliminary conference is held in both civil and criminal cases.
(Sec. 6 and 13)
1. Pre-trial agreement
Q: Bembol was charged with rape. Bembols father, Ramil, approached Artemon, the victims
father, during the preliminary investigation and offered P1 Million to Artemon to settle the
case. Artemon refused the offer.
a)
xxx
a)
During the pre-trial, Bembol personally offered to settle the case for P1 Million to the
private prosecutor, who immediately put the offer on record in the presence of the trial
judge. Is Bembols offer a judicial admission of his guilt? (3%)(2008 Bar Question)
SUGGESTED ANSWER:
No. The offer is not a judicial admission of guilt because it has not been reduced in writing
or signed by the accused. The Rule on pre-trial in criminal cases (Rule 118, Sec. 2, Rules of Court)
requires that all agreements or admissions made or entered during the pre-trial conference shall be
reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against
the accused.
K. Trial
1. Trial in absentia
Q: Enumerate the requisites of a "trial in absentia" (2%) and a promulgation of judgment in
absentia" (2%). (2010 Bar Question)
SUGGESTED ANSWER:
The requisites of a valid trial in absentia are: (1) accused's arraignment; (2) his due
notification of the trial; and (3) his unjustifiable failure to appear during trial (Bemardo v. People,
G.R. No. 166980, April 4, 2007).
The requisites for a valid promulgation of judgment are:
a) A valid notice of promulgation of judgment,
b) Said notice was duly furnished to the accused, personally or thru counsel;
c) Accused failed to appear on the scheduled date of promulgation of judgment despite due
notice;
d) Such judgment be recorded in the criminal docket; and
e) Copy of said judgment had been duly served upon the accused or his counsel
247

1.
What are the requisites of a trial in absentia? [2%]
If an accused who was sentenced to death escapes, is there still a legal necessity for
the Supreme Court to review the decision of conviction? (3%)
2.
SUGGESTED ANSWER:
1.
The requisites of trial in absentia are: (a) the accused hat already been arraigned; b) he
has been duly notified of the trial; and (c) his failure to appear is unjustifiable. (Sec. 14 (2], Article
m, Constitution: Parada us. Veneration, 269 SCRA 371 [1997].)
2.
Yes. There is still a legal necessity for the Supreme Court to review the decision of
conviction sentencing the accused to death, because he is entitled to an automatic review of the
death sentence. (Secs. 3(e) and 10, Rule 122, Rules of Criminal Procedure; People vs. Espargas, 260
SCRA 539.)
2. Remedy when accused is not brought to trial within the prescribed period
Q: Louise is being charged with the frustrated murder of Roy. The prosecution's lone
witness. Mariter, testified to having seen Louise prepare the poison which she later
surreptitiously poured into Roys wine glass. Louise sought the disqualification of Mariter as
witness on account of her previous conviction for perjury. (1994 Bar Question)
1)
xxx
2)
Can Mariter be utilized as state witness if she is a co-accused in the criminal case?
Answer:
1)
xxx
2)
Mariter, however, cannot be utilized as a state witness if she is a co-accused in a criminal
case because an accused can be discharged as a state witness if among five requirements, the
accused has not at any time been convicted of any offense involving moral turpitude. (Sec. 9, Rule
119).
3. Requisites for discharge of accused to become a state witness
Q: As counsel of an accused charged with homicide, you are convinced that he can be utilized
as a state witness. What procedure will you take? Explain. 2.5% (2006 Bar Question)
SUGGESTED ANSWER:
As counsel for the accused, I will advise my client to ask for a reinvestigation and convince
the prosecutor for him to move for the discharge of my client as a state witness, or the accused can
apply as a state witness with the Department of Justice pursuant to Rep. Act No. 6981, The Witness
Protection, Security and Benefit Act. The right to prosecute vests the prosecutor with a wide range
of discretion, including what and whom to charge (Soberano v. People, 472 SCRA 125 [2005]).
Q: Ana is the lone eyewitness to the brutal murder of Bruno allegedly committed by accused
248
Carlo. She deliberately refuses to appear on the scheduled dates for the taking of her
testimony for fear of reprisal from Carlos die-hard followers. (1994 Bar Question)
1)
May Ana be ordered to post bail?
2)
May the court motu proprio order her to post bail?
3)
How shall Ana be proceeded against if she refuses to give bail?
4)
What protection may Ana avail if in case she decides to testify at the trial?
Answer:
1)
Yes. Ana may be ordered to post bail. When the court is satisfied, upon proof or oath, that a
material witness will not testily when required, it may upon motion of either party order the
witness to post ball in such sum as may be deemed proper. (Sec. 14, Rule 119).
2)
No. The rules require that the order to post bail is upon motion of either party. (Id.)
3)
If Ana refuses to post bail, the court shall commit her to prison until she complies or is
legally discharged after her testimony has been taken. (Id.)
4)
Act.
In case Ana decides to testify, she may avail of the benefits under the Witness Protection
Q: Leo Cruz, Domingo Pablo and Manuel Galino are all charged with the crime of murder for
the killing of Bernardo Samis. The prosecutor moved for the discharge of Leo Cruz so that he
may be utilized as a state witness. The court denied the motion to discharge because while it
found that there was compliance with the requirements under subparagraphs a, b, c, and d.
Section 9 of Rule 119, the court found non-compliance with subparagraph e, it appearing
that Cruz was convicted of theft three (3) months earlier by the Municipal Court in Bian,
Laguna, which is an offense involving moral turpitude. The conviction is on appeal before the
Regional Trial Court in Calamba, Laguna.
Is the trial court correct in denying the motion to discharge on this ground? Decide with
reasons. (1990 bar Question)
Answer:
No, because the conviction of Cruz is still pending appeal before the Regional Trial Court of
Laguna. Hence, he is not disqualified from being discharged in order to be a state witness.
(Mangubat v. Sandiganbayan, 143 SCRA 681)
4. Effects of discharge of accused as state witness
(a)
A complaint was filed by the offended party against three persons for homicide in the
Municipal Trial Court. The fiscal filed with the Municipal Court a motion to discharge one of
the defendants to be utilized as witness in the preliminary investigation and at the trial of
the case on the merits.
As the Municipal Trial Judge, rule on the motion with reasons.
(b)
Raulo, accused of falsification of a public document, testified in his own behalf. On
cross-examination, he was asked to take dictation in his own writing for the purpose of
249
comparison. He refused.
May he be compelled to take the dictation? Explain. Answer:
Answer:
(a)
No, because the Municipal Trial Judge may only conduct a preliminary investigation of the
homicide case. Such a motion to discharge one of the defendants to be utilized as a witness for the
prosecution may be acted upon only by the court having jurisdiction to try the case on the merits.
(U.S. vs. Inductivo, 40 Phil. 84)
(b)
Yes, since Raulo voluntarily testified in his own behalf, he is subject to cross-examination
on matters covered by direct examination. (Sec. 1(d) of Rule 115) Whenever a defendant testifying
in his own behalf, denies that a certain writing or signature is in his own hand, he may on crossexamination be compelled to writ in open court for the purpose of comparison. (Beltran vs. Samson,
53 Phil. 580, 574)
5. Demurrer to evidence
Q: State the rule on demurrer to evidence in the trial of criminal cases. (1989 Bar Question)
Answer:
After the prosecution has rested its case, the court may dismiss the case on the ground of
insufficiency of evidence: (1) on its own. motion after giving the prosecution an opportunity to be
heard; or (2) on motion of the accused filed with prior leave of court. If the court denies the motion
for dismissal, the accused may adduce evidence in his defense. When the accused files such motion
to dismiss without express leave of court, he waives the right to present evidence and submits the
case for judgment on the basis of the evidence for the prosecution. (Sec. 15 of Rule 119)
Q: Compare the effects of a denial of demurrer to evidence in a civil case with those of a
denial of demurrer to evidence in a criminal case. (2003 Bar Question)
SUGGESTED ANSWER:
In a civil case, the defendant has the right to file a demurrer to evidence without leave of
court. If his demurrer is denied, he has the right to present evidence. If his demurrer is granted and
on appeal by the plaintiff, the appellate court reverses the order and renders judgment for the
plaintiff, the defendant loses his right to present evidence. (Rule 33).
In a criminal case, the accused has to obtain leave of court to file a demurrer to evidence. If
he obtains leave of court and his demurrer to evidence is denied, he has the right to present
evidence in his defense. If his demurrer to evidence is granted, he is acquitted and the prosecution
cannot appeal.
If the accused does not obtain leave of court and his demurrer to evidence is denied, he
waives his right to present evidence and the case is decided on the basis of the evidence for the
prosecution.
The court may also dismiss the action on the ground of insufficiency of the evidence on its
own initiative after giving the prosecution the opportunity to be heard. (Sec. 23 of Rule 119)
250
A.
After the prosecution rested its case in a criminal action for rape, the accused filed a
demurrer to the evidence.
a)
If the court denies said motion, may the accused adduce evidence in his defense?
Answer:
A.
(a) If the accused had obtained prior leave of court to file a demurrer to the evidence, he
may adduce evidence in his defense upon denial of his motion for dismissal.
However, if he had not obtained prior leave of court, he waives the right to present evidence and
submits the case for judgment on the basis of the evidence for the prosecution. (Sec. 15 of Rule 19
as amended)
b)
Is the rule on demurrer to evidence the same in civil actions?
Answer:
b)
No. In civil cases, the defendant has the right to adduce evidence if his motion for
dismissal is denied. However, if the motion is granted and the order of dismissal is reversed on
appeal, he loses his right to present evidence. (Sec. 1 of Rule 35)
Q: In an action for violation of Batas Pambansa Big. 22, the court granted the accused's
demurrerto evidence which he filed without leave of court. Although he was acquitted of the
crime charged, he, however, was required by the court to pay the private complainant the
face value of the check. The accused filed a Motion for Reconsideration regarding the order
to pay the face value of the check on the following grounds:
a)
the demurrer to evidence applied only to the criminal aspect of the case; and
b)
at the very least, he was entitled to adduce controverting evidence on the civil
liability.
Resolve the Motion for Reconsideration. (2003 Bar Question)

SUGGESTED ANSWER:
a)
The Motion for Reconsideration should be denied. The ground that the demurrer to
evidence applied only to the criminal aspect of the case was not correct because the criminal action
for violation of Batas Pambansa Big. 22 included the corresponding civil action. (Sec. 1(b) of Rule
111).
b)
The accused was not entitled to adduce controverting evidence on the civil liability,
because he filed his demurrer to evidence without leave of court. (Sec. 23 of Rule 119).
Q: X and Y were charged with murder. Upon application of the prosecution, Y was discharged
from the Information to be utilized as a state witness. The prosecutor presented Y as witness
but forgot to state the purpose of his testimony much less offer it in evidence. Y testified that
he and X conspired to kill the victim but it was X who actually shot the victim. The testimony
of Y was the only material evidence establishing the guilt of X. Y was thoroughly crossexamined by the defense counsel. After the prosecution rested its case, the defense filed a
motion for demurrer to evidence based on the following grounds:
251
a) The testimony of Y should be excluded because its purpose was not initially stated
and it was not formally offered in evidence as required by Section 34, Rule 132 of the
Revised Rules of Evidence: and
b) Ys testimony is not admissible against X pursuant to the rule on res inter alios acta",
Rule on the motion for demurrer to evidence on the above grounds. (2003 Bar Question)
SUGGESTED ANSWER:
The demurrer to the evidence should be denied because:
a)
The testimony of Y should not be excluded because the defense counsel did not object to his
testimony despite the fact that the prosecutor forgot to state its purpose or offer it in evidence.
Moreover, the defense counsel thoroughly cross-examined Y and thus waived the objection.
b)
The res inter alios acta rule does not apply because Y testified in open court and was
subjected to cross examination.
Q: Carlos, the accused in a theft case, filed a demurrer to evidence without leave of court. The
court denied the demurrer to evidence and Carlos moved to present his evidence. The court
denied Carlos' motion to present evidence and instead rendered Judgment on the basis of
the evidence for the prosecution.
Was the court correct in preventing Carlos from presenting his evidence and rendering
judgment on the basis of the evidence for the prosecution? Why? (5%) (2001 Bar Question)
SUGGESTED ANSWER:
Yes, because the demurrer to the evidence was filed without leave of court. The Rules
provide that when the demurrer to evidence is filed without leave of court, the accused waives the
right to present evidence and submits the case for judgment on the basis of the evidence for the
prosecution. (Sec. 23 of Rule 119, Revised Rules of Criminal Procedure)
Q: After the government has rested its case of Raul s trial for Qualified Theft. Raul, with leave
of court, filed a Motion to Acquit" on the ground of lack of evidence proving his guilt beyond
reasonable doubt. The motion was denied on the ground that Raul should have filed a
demurrer to evidence, not a Motion to Acquit. On the same day, without giving him the
opportunity to present his defense, Raul was convicted on the basis of the evidence adduced
by the prosecution. (1994 Bar Question)
1)
Did the trial court correctly deny Raul's motion?
2)
Was Rauls conviction proper?
Answer:
1)
No. The Court did not correctly deny Rauls motion to acquit. Demurrer to the evidence and
motion to acquit are one and the same thing. Demurrer to the evidence is actually a motion to
dismiss the case based on the insufficiency of the evidence of the prosecution. If the court finds that
the evidence is insufficient, it may dismiss the case on that ground, and that amounts to an acquittal
of the accused. (Sec. 15. Rule 119).
2)
No. Rauls conviction was not proper because he was not given the opportunity to present
252
his defense. The rule is that if the court denies the motion for dismissal filed with prior leave of
court, the accused may adduce evidence in his defense. It is only when the accused files such motion
to dismiss without express leave of court that he waives the right to present evidence and submits
the case for judgment on the basis of the evidence for the prosecution. (Id.)
Q: The information for illegal possession of firearm filed against the accused specifically
alleged that he had no license or permit to possess the caliber .45 pistol mentioned therein.
In its evidence-in-chief, the prosecution established the fact that the subject firearm was
lawfully seized by the police from the possession of the accused, that is, while the pistol was
tucked at his waist in plain view, without the accused being able to present any license or
permit to possess the firearm. The prosecution on such evidence rested its case and within a
period of five days therefrom, the accused filed a demurrer to evidence, in sum contending
that the prosecution evidence has not established the guilt of the accused beyond reasonable
doubt and so prayed that he be acquitted of the offense charged.
The trial court denied the demurrer to evidence and deemed the accused as having waived
his right to present evidence and submitted the case for judgment on the basis of the
prosecution evidence. In due time, the court rendered judgment finding the accused guilty of
the offense charged beyond reasonable doubt and accordingly imposing on him the penalty
prescribed therefor.
Is the judgment of the trial court valid and proper? Reason. (5%) (2004 Bar Question)
SUGGESTED ANSWER:
Yes. The judgment of the trial court is valid. The accused did not ask for leave to file the
demurrer to evidence. He is deemed to have waived his right to present evidence. (Sec. 23 of Rule
119; People v. Flores, 269 SCRA 62 [1997]; Bernardo v. Court of Appeals , 2 78 SCRA 782
[1997]). However, the judgment is not proper or is erroneous because there was no showing from
the proper office like the Firearms Explosive Unit of the Philippine National Police that the accused
has a permit to own or possess the firearm, which is fatal to the conviction of the accused. (Mallari
v. Court of Appeals & People ,265 SCRA 456[1996]).
Q: Facing a charge of Murder, X filed a petition for bail. The petition was opposed by the
prosecution but after hearing, the court granted ball to X. On the first scheduled hearing on
the merits, the prosecution manifested that it was not adducing additional evidence and that
it was resting its case. X filed a demurrer to evidence without leave of court but it was denied
by the court.
1.
Did the court have the discretion to deny the demurrer to evidence under the
circumstances mentioned above? [2%]
2.
If the answer to the preceding question is in the affirmative, can X adduce evidence
in his defense after the denial of his demurrer to evidence? [1%]
3.
Without further proceeding and on the sole basis of the evidence of the prosecution,
can the court legally convict X for Murder? [2%] (1998 Bar Question)
SUGGESTED ANSWER:
1.
Yes. The Court had the discretion to deny the demurrer to the evidence, because although
the evidence presented by the prosecution at the hearing for bail was not strong, without any
evidence for the defense, it could be sufficient for conviction.
253
2.
No. Because he filed the demurrer to the evidence without leave. (Sec. 15, Rule 119, Rules
of Criminal Procedure.) However, the trial court should inquire as to why the accused filed the
demurrer without leave and whether his lawyer knew that the effect of filing it without leave is to
waive the presentation of the evidence for the accused. (People us. Flores, 269 SCRA 62.)
3.
Yes. Without any evidence from the accused, the prima facie evidence of the prosecution
has been converted to proof beyond reasonable doubt.
ALTERNATIVE ANSWER:
If the evidence of guilt is not strong and beyond reasonable doubt then the court cannot legally
convict X for murder.
Q: A was charged with the crime of kidnapping with murder. After the prosecution rested its
case, A filed a demurrer to evidence on ground of Insufficiency of evidence to sustain his
conviction. The prosecution filed an opposition. The trial court denied the demurrer and the
motion for reconsideration thereafter filed. A filed a petition for certiorari with the Court of
Appeals alleging that the denial of the demurrer to evidence, when there is no evidence
against him, constitutes grave abuse of discretion, and prayed that the Court of Appeals
render judgment acquitting him.
May the trial court's denial of the demurrer to evidence be properly assailed by a petition for
certiorari in the Court of Appeals? Explain. (1996 Bar Question)
Answer:
The question does not state that A had obtained prior leave of court to file a demurrer to
evidence. Without such leave of court, A has waived his right to present evidence and has submitted
the case for judgment on the basis of the evidence for the prosecution. (Sec. 15 of Rule 119)
Alternative Answer:
No, because the question of sufficiency of evidence to sustain a conviction may not be raised
in a petition for certiorari. The remedy of A is to present his evidence and in the event of conviction
to appeal. [Joseph vs. Villaluz, 89 SCRA 824)
Q: Geronimo was charged with homicide in the Regional Trial Court of Pasay City. After his
plea of not guilty, the prosecution presented its evidence and formally offered several
exhibits. Before admitting or objecting to the exhibits offered by the prosecution, Geronimo
moved that the case be dismissed on the ground of insufficiency of evidence. The court
denied the motion. Thereafter, Geronimo called his first witness to the stand. The
prosecution objected, contending that Geronimo waived his right to present evidence since
he never asked leave of court to demur to the evidence presented by the prosecution.
Answer:
254
Objection overruled. The rule on waiver does not apply because the prosecution had not yet
rested its case when Geronimo moved to dismiss on the ground of insufficiency of evidence.
Q: After the prosecution had rested and made its formal offer of evidence, with the court
admitting all of the prosecution evidence, the accused filed a demurrer to evidence with
leave of court. The prosecution was allowed to comment thereon. Thereafter, the court
granted the demurrer, finding that the accused could not have committed the offense
charged. If the prosecution files a motion for reconsideration on the ground that the court
order granting the demurrer was not in accord with the law and jurisprudence, will the
motion prosper? Explain your answer. (3%) (2009 Bar Question)
SUGGESTED ANSWER:
NO, the motion will not prosper. With the granting of the demurrer, the case shall be
dismissed and the legal effect is the acquittal of the accused. A judgment of acquittal is immediately
executory and no appeal can be made therefrom. Otherwise the Constitutional protection against
double jeopardy would be violated.
L. Judgment
Q: AX was charged before the YY Regional Trial Court with theft of jewelry valued at P20.000,
punishable with imprisonment of up to 10 years of prision mayor under the Revised Penal
Code. After trial, he was convicted of the offense charged, notwithstanding that the material
facts duly established during the trial showed that the offense committed was estafa,
punishable by imprisonment of up to eight years of prision mayor under the said Code. No
appeal having been taken therefrom, said judgment of conviction became final.
Is the judgment of conviction valid? Is the said judgment reviewable thru a special civil
action for certiorari? Reason. (5%) (2004 Bar Question)
SUGGESTEDANSWER:
Yes, the judgment of conviction for theft upon an information for theft is valid because
the court had jurisdiction to render judgment. However, the judgment was grossly and blatantly
erroneous. The variance between the evidence and the judgment of conviction is substantial since
the evidence is one for estafa while the judgment is one for theft. The elements of the two crimes
are not the same. (Lauro Santos v. People, 181 SCRA 487). One offense does not necessarily
include or is included in the other. (Sec. 5 of Rule 120).
The judgment of conviction is reviewable by certiorari even if no appeal had been taken,
because the judge committed a grave abuse of discretion tantamount to lack or excess of his
jurisdiction in convicting the accused of theft and in violating due process and his right to be
informed of the nature and the cause of the accusation against him, which make the judgment void.
With the mistake in charging the proper offense, the judge should have directed the filing of the
proper information and thereafter dismissed the original information. (Sec. 19 of Rule 119).
1. Promulgation of judgment; instances of promulgation of judgment in absentia
Q: X, the accused in a homicide case before the Regional Trial Court, Dagupan City, was
personally notified of the promulgation of judgment in his case set for 10 December 1996.
On said dale, X was not present as he had to attend to the trial of another criminal case
255
against him in Tarlac, Tarlac. The trial court denied the motion of the counsel of X to
postpone the promulgation.
(a)
How shall the court promulgate the judgment in the absence of the accused?
(b)
Can the trial court also order the arrest of X? (1997 Bar Question)
Answer:
(a)
In the absence of the accused, the promulgation shall be made by recording, the Judgment
in the criminal docket and a copy thereof served upon the accused or counsel. (Sec. 6, third par.,
Rule 120)
(b)
No. the trial court cannot order the arrest of X if the Judgment is one of acquittal and. in any
event, his failure to appear was with Justifiable cause since he had to attend to another criminal
case against him. (Id.)
Q: The accused was duly notified of the date set for the promulgation of the decision in the
case filed against him. The accused failed to appear but his counsel was present. The judge
ordered the cancellation of the bailbond posted by the accused and issued a warrant for his
arrest. The judge further ordered that the promulgation of the decision be held' in abeyance
until the accused is taken into custody. Was the action taken by the judge proper? Explain
fully. (1989 Bar Question)
Answer:
The judge correctly ordered the cancellation (forfeiture) of the bailbond posted by the
accused and the issuance of a warrant for his arrest upon his failure to appear for the promulgation
of the decision in the case filed against him.
However, the judge erred in holding in abeyance the promulgation of the decision until the
accused is taken into custody, because in such case the promulgation shall be made by recording
the judgment in the criminal docket and a copy shall be served upon the accused or counsel. (Sec. 6
of Rule 120)
If the judgment was of conviction for a light offense, the promulgation should be made in
the presence of the counsel.
M. New trial or reconsideration
1. Requisites before a new trial may be granted on ground of newly-discovered evidence
Q: Give the requisites of: (1998 Bar Question)
1.
Newly Discovered Evidence; and [3%]
2.
xxx
SUGGESTED ANSWER:
1.
The requisites of newly discovered evidence are: (a) the evidence was discovered after the
trial; (b) such evidence could not have been discovered and produced at the trial with reasonable
256
diligence; and (c) that it is material, not merely cumulative, corrobarative or impeaching, and is of
such weight that, if admitted, will probably change the judgment. (Commissioner of Internal
Revenue vs. A. Soriano Corporation, 267 SCRA 313.)
ALTERNATIVE ANSWER:
New and material evidence has been discovered which the accused could not with
reasonable diligence have discovered and produced at the trial, and which if introduced and
admitted, would probably change the judgment. (Sec. 2[b] of Rule 121.)
N. Appeal
1. Effect of appeal by any of several accused
Q: In an Information charging them of Murder, policemen A, B and C were convicted of
Homicide. A appealed from the decision but Band C did not. B started serving his sentence
but C escaped and is at large. In the Court of Appeals, A applied for bail but was denied.
Finally, the Court of Appeals rendered a decision acquitting A on the ground that the
evidence pointed to the NPA as the killers of the victim.
1.
xxx
2.
Can B and C be benefited by the decision of the Court of Appeals? [13%] (1998 Bar
Question)
SUGGESTED ANSWER:
1.
xxx
2.
B, who did not appeal, can be benefited by the decision of the Court of Appeals which is
favorable and applicable to him. (Sec. 11 [a]. Rule 122, Rules of Criminal Procedure.) The benefit
will also apply to C even if his appeal is dismissed because of his escape.
2. Grounds for dismissal of appeal
Q: After receiving the adverse decision rendered against his cl ient, the defendant;
Atty. Sikat duly filed a notice of appeal. For his part, the plaintiff timely filed a
motion for partial new trial to seek an increase in the monetary damages awarded.
The RTC instead rendered an amended decision further reducing the m onetary
awards. Is it necessary for Atty. Sikat to file a second notice of appeal after receiving
the amended decision? (3%) (2008 Bar Question)
SUGGESTED ANSWER:
Yes, it is necessary for Atty. Sikat to file a second notice of appeal to the amended decision
because a substantial change was made to the original decision when the monetary awards were
reduced in the amended decision and in effect the amended decision superseded the original
decision. A new notice of appeal is required to comply with the required contents thereof in respect
of the amended decision (Pacific Life Assurance Corporation v. Sison, 299 SCRA 16 [1998];
Magdelana Estates, Inc. v. Caluag, 11 SCRA 333 [1964]).
257
O. Search and seizure

1. Nature of search warrant
Q: Bener was the driver of the car that the police searched and from where they seized a rifle
and a number of shells. Bener assails the legality of the search and seizure on the ground
that he is not the owner of the car nor of the seized items.
Rule on Beners contention? (1994 Bar Question)
Answer:
Beners contention is not correct. The mere fact that he is not the owner of the car nor of the
seized items does not have any effect on the legality of the search. If Bener is accused of Illegal
possession of firearms, his defense would be that he is only the driver of the car and knows nothing
of the seized items, and if the seizure of the items was made without a search warrant, he can say
that they were illegally obtained and cannot be admissible in court.
2. Distinguish from warrant of arrest
Q: A was killed by B during a quarrel over a hostess in a nightclub. Two days after the
incident, and upon complaint of the widow of A, the police arrested B without a warrant of
arrest and searched his house without a search warrant.
Can the gun used by B in shooting A. which was seized during the search of the house
of B, be admitted in evidence?
(a)
(b)
Is the arrest of B legal?
(c)
Under the circumstances, can B be convicted of homicide? (1997 Bar Question)
Answer:
(a)
No. The gun seized during the search of the house of B without a search warrant is not
admissible in evidence. (Secs. 2 and 3(2). Art. III of Constitution). Moreover, the search was not an
Incident to a lawful arrest of a person under Sec. 12 of Rule 126.
(b)
No. A warrantless arrest requires that the crime has in fact just been committed and the
police arresting has personal knowledge of facts that the person to be arrested has committed it.
(Sec. 5, Rule 113). Here, the crime has not just been committed since a period of two days had
already lapsed, and the police arresting has no such personal knowledge because he was not
present when the incident happened. (Go us. Court of Appeals, 206 SCRA 138).
(c)
Yes. The gun is not indispensable in the conviction of A because the court may rely on
testimonial or other evidence.
a)
xxx
b)
May a house be searched without a search warrant?
c)
How about a person, may he be searched without warrant? Explain.

258
Answer:
a)
xxx
b-c)
A house may not be searched without a warrant in view of the constitutional prohibition
against unreasonable searches and seizures. However, a person who has lawfully been arrested
may be searched without a warrant, inasmuch as the search is incidental to a lawful arrest. (Sec. 12
of Rule 126)
Alternative Answer:
(b)
A house may be searched without a search warrant:
1)
with the consent of the owner;
2)
when the search is incidental to a lawful arrest but the scope shall be limited to the area
where the arrestee can reach for a weapon or for evidence in order to destroy it; and
3)
when the object to be seized is within plain view of the arresting officer and possession
thereof is illegal.
3. Particularity of place to be searched and things to be seized
Q: Police operatives of the Western Police District, Philippine National Police, applied for a
search warrant in the Regional Trial Court for the search of the house of Juan Santos and the
seizure of an undetermined amount of shabu. The team arrived at the house of Santos but
failed to find him there. Instead, the team found Roberto Co.
The team conducted a search in the house of Santos in the presence of Roberto Co and
barangay officials and found ten (10) grams of shabu. Roberto Co was charged in court with
illegal possession of ten grams of shabu.
Before his arraignment, Roberto Co filed a motion to quash the search warrant on the
following grounds: (a) he was not the accused named in the search warrant; and (b) the
warrant does not describe the article to be seized with sufficient particularity.
SUGGESTED ANSWER:
The motion to quash should be denied. The name of the person in the search warrant is not
important. It is not even necessary that a particular person be implicated (Mantaring v. Roman, 259
SCRA 158 [1996]), so long as the search is conducted in the place where the search warrant will be
served. Moreover, it is sufficient to describe the shabu in an undetermined amount. Notably, what is
to be seized is a particular drug and an undetermined amount thereof particularizes the things to
be seized. (People v. Tee, 395 SCRA 419 [2003]; People v. Dichoso, 223 SCRA 174, 184 [1993]).
4. Personal property to be seized
Q: In the course of serving a search warrant, the police finds an unlicensed firearm. Can the
police take the firearm even if it is not covered by the search warrant? If the warrant is
subsequently quashed, is the police required to return the firearm? Explain briefly.
259
SUGGESTED ANSWER:
Yes, the police may take with him the unlicensed firearm although not covered by the
search warrant. Possession of an unlicensed firearm is a criminal offense and the police officer
may seize an article which is the subject of an offense. This is especially so considering that the
unlicensed firearm appears to be in plain view of the police officer when he conducted the
search.
Even if the warrant was subsequently quashed, the police is not mandated to return the
unlicensed firearm. The quashal of the search warrant did not affect the validity of the seizure of
the unlicensed firearm. Moreover, returning the firearm to a person who is not otherwise allowed
by law to possess the same would be tantamount to abetting a violation of the law.
Waiver of Right to
d)
Rifle; [2%]
e)
xxx
f)
x x x (1998 Bar Question)
SUGGESTED ANSWER:
4.
The rifle is not admissible in evidence because it was seized without a proper search
warrant. A warrantless search is not justified. There was time to secure a search warrant. (People
us. Encinada, G.R. No. 116720, October 2, 1997 and other cases.)
5.
xxx
6.
xxx
5. Exceptions to search warrant requirement

a. Search incidental to lawful arrest
Q: In a buy-bust operation, the police operatives arrested the accused and seized from him a
sachet of shabu and an unlicensed firearm. The accused was charged in two Informations,
one for violation of the Dangerous Drugs Act", as amended, and another for illegal
possession of firearms.
The accused filed an action for recovery of the firearm in another court against the police
officers with an application for the issuance of a writ of replevin. He alleged in his Complaint
that he was a military informer who had been issued a written authority to carry said
firearm. The police officers moved to dismiss the complaint on the ground that the subject
firearm was in custodia legis. The court denied the motion and instead issued the writ of
replevin.
(a) Was the seizure of the firearm valid?
260
(b) Was the denial of the motion to dismiss proper? (2003 Bar Question)
SUGGESTED ANSWER:
Yes, the seizure of the firearm was valid because it was seized in the course of a valid arrest
in a buy-bust operation. (Sec. 12 and 13 of Rule 126) A search warrant was not necessary. {People
v. Salazar, 266 SCRA 607 [1997]).
(a)
The denial of the motion to dismiss was not proper. The court had no authority to issue the
writ of replevin whether the firearm was in custodia legis or not. The motion to recover the firearm
should be filed in the court where the criminal action is pending.
(b)
b. Plain view situation

Q: The search warrant authorized the seizure of undetermined quantity of shabu. During
the service of the search warrant, the raiding team also recovered a kilo of dried marijuana
leaves wrapped in newsprint. The accused moved to suppress the marijuana leaves as
evidence for the violation of Section 11 of the Comprehensive Dangerous Drugs Act of 2002
since they were not covered by the search warrant. The State justified the seizure of the
marijuana leaves under the plain view doctrine. There was no indication of whether the
marijuana leaves were discovered and seized before or after the seizure of the shabu. If you
are the judge, how would you rule on the motion to suppress? (4%) (2008 Bar Question)
SUGGESTED ANSWER:
The motion to suppress filed by the accused should be granted. The search warrant violates
the constitutional and statutory requirement that it should particularly describe the person or
things to be seized (Sec. 2, Art. Ill, Constitution; Sec. 2, Rule 126, Revised Rules of Criminal
Procedure). The plain view doctrine cannot be invoked because the marijuana leaves were
wrapped in newsprint. Besides the marijuana leaves are not the subject of the search warrant.
There was no evidence as to whether the marijuana leaves were discovered and seized before or
after the seizure of the shabu. If they were discovered after the seizure of the shabu, then they could
not have been seized in plain view (Cf. People vs. Musa, GR No. 96177, January 27, 1997). The
confiscation of the marijuana leaves must be upheld, (People v. Salunguit Roberto y Ko, 356 SCRA
683 [200l]), hence rendering the same inadmissible in evidence against the accused.
c. Stop and frisk situation
Q: What is a Terry search (or so-called stop and frisk")? Is it justified under existing law and
jurisprudence? Explain. (1995 Bar Question)
Answer:
A Terry search is a stop-and-search without a warrant. It is justified when conducted by
police officers on the bases of prior confidential information which were reasonably corroborated
by other attendant matters. (Aniag, Jr. vs. Comelec, 237 SCRA 424)
Alternative Answer:
261
A Terry search is one conducted without a search warrant and is designed either to
determine the identity of a suspicious individual or to maintain the status quo while the police
officer is obtaining more information. (Posadas vs. CA, 188 SCRA 288).
VI. Evidence
A. General principles
Q: Give the reasons underlying the adoption of the following rules of evidence: (1997 Bar
Question)
(a)
Dead Man Rule?
(b)
Parol Evidence Rule
(c)
Best Evidence Rule
(d)
The rule against the admission of illegally obtained extrajudicial confession
(e)
The rule against the admission of an oiler of compromise in civil cases
Answer:
The reasons behind the following rules are as follows:
(a)
Dead Man Rule: If death has closed the lips of one party, the policy of the law is to close the
lips of the other. (Goni v. Court of Appeals, L-77434. September 23.1986.144 SCRA 222). This is to
prevent the temptation to perjury because death has already sealed the lips of the party.
(b)
Parol Evidence Rule: It is designed to give certainty to a transaction which has been
reduced to writing, because written evidence is much more certain and accurate than that which
rests on fleeting memory only. (Francisco, Revised Rules of Court, Vol. VII, Part I. p. 154)
(c)
Best Evidence Rule: This Rule is adopted for the prevention of fraud and is declared to be
essential to the pure administration of Justice. (Moran, Vol. 5, p. 12.) If a party is in possession of
such evidence and withholds it, the presumption naturally arises that the better evidence is withheld for fraudulent purposes. (Francisco, Revised Rules of Court vol. VII, Part I, pp. 121,122)
(d)
An illegally obtained extrajudicial confession nullifies the intrinsic validity of the
confession and renders it unreliable as evidence of the truth. (Moran, vol. 5. p. 257). It is the fruit of
a poisonous tree.
(e)
The reason for the rule against the admission of an offer of compromise in civil case as
an admission of any liability is that parties are encouraged to enter into compromises. Courts
should endeavor to persuade the litigants in a civil case to agree upon some fair compromise. (Art.
2029, Civil Code). During pre-trial, courts should direct the parties to consider the possibility of an
amicable settlement. (Sec. 1 (a) of former Rule 20: Sec. 2 (a) of new Rule 18).
Alternative Answer:
262
(b)
The reason rests on a presumption of integration of jural acts which advocates that a
written contract merges or integrates all prior and contemporaneous negotiations and that the
instrument has incorporated all terms that the parties have agreed upon. (9 Wigmore,Sec. 2425 p.
75(1981 ed)
(a)
This provides the constitutional right of the accused to protect himself against selfincrimination because of the police dominated atmosphere.
Q: If the result of such test shows that he is HIV positive, and the prosecution offers such
result in evidence to prove the qualifying circumstance under the information for qualified
rape, should the court reject such result on the ground that it is the fruit of a poisonous tree?
Explain. (8%)(2005 Bar Question)
SUGGESTED ANSWER:
The fruits of the poisonous tree doctrine applies only where the primary source is shown to
have been unlawfully obtained or was the result of an illegal act (People v. Alicando, G.R. No.
117487, 251 SCRA 293 [1995]) Since the rights of the accused are not violated because the
compulsory testing is authorized by law, the result of the testing cannot be considered to be the
fruit of a poisonous tree and can be offered in evidence to prove the qualifying circumstance under
the information for qualified rape under Republic Act No. 8353.
1. Admissibility of evidence
Q: Arrested in a buy-bust operation, Edmond was brought to the police station where he was
informed of his constitutional rights. During the investigation, Edmond (refused to give any
statement. However, the arresting officer asked Edmond to acknowledge in writing that six
(6) sachets of shabu were confiscated from him. Edmond consented and also signed a
receipt for the amount of P3,000.00, allegedly representing the purchase price of the
shabu. At the trial, the arresting officer testified and identified the documents executed and
signed by Edmond. Edmonds lawyer did not object to the testimony. After the presentation
of the testimonial evidence, the prosecutor made a formal offer of evidence which included
the documents signed by Edmond.
Edmonds lawyer objected to the admissibility of the documents for being the fruit of the
poisoned tree. Resolve the objection with reasons. (3%) (2009 Bar Question)
SUGGESTED ANSWER:
The objection to the admissibility of the documents which the arresting officer asked
Edmond to sign without the benefit of counsel, is well-taken. Said documents having been signed by
the accused while under custodial investigation, imply an admission without the benefit of
counsel, that the shabu came from him and that the P3,000.00 was received by him pursuant to the
illegal selling of the drugs. Thus, it was obtained by the arresting officer in clear violation of Sec.
12(3), Art. Ill of the 1987 Constitution, particularly the right to be assisted by counsel during
custodial investigation.
Moreover, the objection to the admissibility of the evidence was timely made, i.e., when the
same is formally offered.
263
Q: The mutilated cadaver of a woman was discovered near a creek. Due to witnesses
attesting that he was the last person seen with the woman when she was still alive, Carlito
was arrested within five hours after the discovery of the cadaver and brought to the police
station. The crime laboratory determined that the woman had been raped. While in police
custody, Carlito broke down in the presence of an assisting counsel and orally confessed to
the investigator that he had raped and killed the woman, detailing the acts he had performed
up to his dumping of the body near the creek. He was genuinely remorseful. During the trial,
the State presented the investigator to testify on the oral confession of Carlito. Is the oral
confession admissible as evidence, of guilt? (4%) (2008 Bar Question)
SUGGESTED ANSWER:
No, the oral confession is not admissible as evidence of guilt of Carlito because he was
already under arrest and in police custody when he made the extrajudicial confession but the
mandates of Rep. Act No. 7438, particularly Sections 2, par. (d), have not been complied with.
Noncompliance with said par. (d) of the law expressly renders the extrajudicial confession
inadmissible as evidence in any proceeding.
He was not informed of his right to be warned and he was not informed of the Miranda right
particularly the right to remain silent. Additionally, it does not appear that counsel present is his
counsel of his choice.
Waiver of Right to
a)
Rifle; [2%]
b)
Sworn Statement; and (2%]
c)
Waiver of Right to Counsel of X. [1%] (1998 Bar Question)
SUGGESTED ANSWER:
1.
The rifle is not admissible in evidence because it was seized without a proper search
warrant. A warrantless search is not justified. There was time to secure a search warrant. (People
us. Encinada, G.R. No. 116720, October 2, 1997 and other cases.)
2.
The sworn statement is not admissible in evidence because it was taken without informing
him of his custodial rights and without the assistance of counsel which should be independent and
competent and preferably of the choice of the accused. (People vs. Januario, 267 SCRA 608.)
3.
The waiver of his right to counsel is not admissible because it was made without the
assistance of counsel of his choice. {People vs. Gomez, 270 SCRA433.)
264
Q: A sued for annulment of his marriage with B. During trial, A offered in evidence cassette
tapes of alleged telephone conversations o B with her lover. The tapes were recordings
made by tapping As telephone line, with As consent and obviously without B's or her
lover's. B vehemently objected to their admission, on the ground that neither B nor her lover
consented to the wire tap. The court admitted the tapes, ruling that the recorded
conversations are nonetheless relevant to the issues involved.
Was the court correct in admitting the cassette tapes in evidence? Explain. (1996 Bar
Question)
Answer:
No, because the tape recordings made by tapping As telephone line without the consent of
B or that of her lover was a violation of the Anti-Wire Tapping Law. (RA No. 4200; Salcedo-Ortanez
vs. Court of Appeals, 235 SCRA 111)
Q: At the homicide trial, the prosecution proposed that accused Joey undergo a series of
paraffin tests to determine whether he fired his service pistol at the time the victim, Lyn, was
shot to death. The defense objected on the ground that Joey's submission of his hands for
paraffin test, or the Inspection of any part of his body for that matter, would violate his right
against self-incrimination. (1994 Bar Question)
1)
2)
Is the result of the paraffin test admissible in evidence?
Answer:
1)
The objection should be overruled. Submission to the paraffin test is not a violation of the
right against self-incrimination because it involves only an examination of a part of the body. What
violates the right against self-incrimination is testimonial compulsion.
2)
The result of the paraffin test is admissible in evidence although it is not conclusive and is
not the only evidence that should be considered.
a. Relevance of evidence and collateral matters
Q: On the basis of the testimonies of Narcom agents, James and Tony, who spearheaded the
buy-bust" operation by posing as buyers after a tip from a civilian informer, Steve, Bob was
convicted of violation of the Dangerous Drugs Act. On appeal. Bob claims that he is entitled to
an acquittal as the prosecution willfully suppressed evidence in not presenting the informer,
Steve, in court.
Decide Bobs contention. (1994 Bar Question)
Answer:
Bobs contention is not correct. The prosecution could not be considered to have willfully
suppressed evidence in not presenting in court the informer in the buy-bust operation. The
informers testimony is not necessary in convicting Bob of violation of the Dangerous Drugs Act
because there were the testimonies of two (2) Narcom agents who spearheaded the operation.
265
2. Burden of proof and burden of evidence

Q: Distinguish clearly but briefly between:
1.
Burden of proof and burden of evidence. (2004 Bar Question)
SUGGESTED ANSWER:
Burden of proof is the duty of a party to present evidence on the facts in issue necessary to
establish his claim or defense by the amount of evidence required by law. (Sec. 1 of Rule 131), while
burden of evidence is the duty of a party to go forward with the evidence to overthrow primafacie
evidence established against him. (See Bautista v. Sarmiento, 138 SCRA 587 [1985]).
Q: Explain the equipoise doctrine in the law of evidence and cite its constitutional and
procedural bases. (1995 Bar Question)
Answer:
Equipoise is the equivalent of equiponderance of evidence. When the scale shall stand upon
an equipoise and there is nothing in the evidence which shall incline it to one side or the other, the
court will find for the defendant. (Moran, Vol. 6, p. 134)
The Constitution provides that no person shall be deprived of life, liberty or property
without due process of law, nor shall any person be denied the equal protection of the law. (Sec. 1,
Art. III)
Burden of proof is the duty of a party to present evidence on the facts in issue necessary to
establish his claim or defense by the, amount of evidence required by law. (Sec. 1, Rule 131)
In a criminal case its constitutional basis is the presumption of innocence and the
requirement of proof beyond reasonable doubt for conviction.
3. Presumptions (Conclusive presumptions, Disputable presumptions)
1.
In an illegal detainer case the Municipal Trial Court ruled in favor of plaintiff-lessor
who, not being satisfied with the increase of rentals granted him by the court, appealed
praying for further increase thereof. Defendant-lessee did not appeal.
a)
Can plaintiff-lessor, as appellant, move for execution pending appeal? Explain.
Can defendant-lessee, as appellee, validly resist the immediate execution of

the judgment? Explain.
b)
2.
In his appellee's brief, defendant-lessee not only controverted the issue on rentals
raised by plaintiff-lessor but also assailed the judgment of the trial court on the ground that
the same was totally contrary to the admitted evidence showing him to be the owner of the
property entitled to possession of the premises.
Can the appellate court consider the issue of ownership raised by the appellee? Discuss fully.
Answer:
1.
a)
Yes, if defendant fails to pay or deposit the amount of rentals adjudged by the court
within the reglementary period. (City of Manila vs. CA, 149 SCRA 143)
b)
Yes, as long as he pays or deposits the amount of rental adjudged.

266
2.
No, because a lessee he is estopped from raising the question of ownership. (Art. 1456, Civil
Code; Sec. 2(b), Rule 131; Fije vs. CA, 233 SCRA 587)
4. Liberal construction of the rules of evidence
Q: How shall the Rules of Court be construed? [2%] (199 Bar Question)
Answer:
The Rules of Court should be liberally constructed in order to promote their objective of
securing a Just, speedy and inexpensive disposition of every action and proceeding. (Sec. 6, Rule 1,
1997 Rules of Civil Procedure.)
Additional Answer:
However, strict observance of the rules is an imperative necessity when they are considered
indispensable to the prevention of needless delays and to the orderly and speedy dispatch of
judicial business. (Alvero vs. Judge de la Rosa. 76 Phil. 428 and other cases.)
5. Quantum of evidence (weight and sufficiency of evidence)
a. Proof beyond reasonable doubt
b. Preponderance of evidence
c. Substantial evidence
d. Clear and convincing evidence
Q: Distinguish preponderance of evidence from substantial evidence. (2003 Bar Question)
SUGGESTED ANSWER:
Preponderance of evidence means that the evidence as a whole adduced by one side is
superior to that of the other. This is applicable in civil cases. (Sec. 1 of Rule 133; Municipality of
Moncada v. Cajuigan, 21 Phil. 184 [1912]).
Substantial evidence is that amount of relevant evidence which a reasonable mind might
accept as adequate to justify a conclusion. This is applicable in cases filed before administrative or
quasi-judicial bodies. (Sec. 5 of Rule 133)
B. Judicial notice and judicial admissions
1. Matters of judicial notice (Mandatory, Discretionary)
a)
Answer:
(a)
The three instances when a Philippine court can take judicial notice of a foreign law are: (1)
when the Philippine courts are evidently familiar with the foreign law (Moran, Vol. 5, p. 34,1980
edition): (2) when the foreign law refers to the law of nations (Sec. 1 of Rule 129) and, (3) when it
267
refers to a published treatise, periodical or pamphlet on the subject of law if the court takes judicial
notice of the fact that the writer thereof is recognized in his profession or calling as expert on the
subject (Sec. 4(5, Rule 130).
2. Judicial admissions
a. How judicial admissions may be contradicted
Q: In an action for reconveyance of a parcel of land filed in the Regional Trial Court, the
defendant, through his lawyer, filed an answer therein admitting the averment in the complaint that the land was acquired by the plaintiff through inheritance from his parents, the
former owners thereof.
Subsequently, the defendant changed his lawyer and, with leave of court, amended the
answer. In the amended answer, the abovementioned admission no longer appears; instead,
the alleged ownership of the land by the plaintiff was denied coupled with the allegation that
the defendant is the owner of the land for the reason that he bought the same from the
plaintiffs parents during their lifetime.
After trial, the Regional Trial Court rendered a decision upholding the defendants
ownership of the land.
On appeal, the plaintiff contended that the defendant is bound by the admission contained in
his original answer.
Is the contention of plaintiff correct? Why? (1993 Bar Question)
Answer:
No, because pleadings that have been amended disappear from the record, lose their status
as pleadings and cease to be judicial admissions. While they mav nonetheless be utilized as against
the pleader as extrajudicial admissions, they must, in order to have such effect, be formally offered
in evidence. [Director of Lands vs. Court of Appeals, 196 SCRA 94)
Alternative Answer:
Yes, because an admission in the original pleading does not cease to be a judicial admission
simply because it was deleted in an amended pleading. The original answer, although replaced by
an amended answer does not cease to be part of a judicial record, not having been expunged
therefrom. (Dissenting opinion in Torres vs. Court of Appeals, 131 SCRA 24)
3. Judicial notice of foreign laws, law of nations and municipal ordinance
Q: In rendering a decision, should a court take into consideration the possible effect of its
verdict upon the political stability and economic welfare of the nation? (2003 Bar Question)
SUGGESTED ANSWER:
No, because a court is required to take into consideration only the legal issues and
the evidence admitted in the case. The political stability and economic welfare of the
nation are extraneous to the case. They can have persuasive influence but they are not the
main factors that should be considered in deciding a case. A decision should be based on
the law, rules of procedure, justice and equity. However, in exceptional cases the court
268
may consider the political stability and economic welfare of the nation when these are
capable of being taken into judicial notice of and are relevant to the case.
Q: Explain briefly whether the Regional Trial Court may, motu proprio, take judicial notice of
the following: (2005 Bar Question)
a)
The street name of methamphetamine hydrochloride is shabu:
SUGGESTED ANSWER:
The Regional Trial Court may motu proprio take judicial notice of the fact that the street
name of methamphetamine hydrochloride is shabu, considering the chemical composition of shabu
(People v. Macasling, 222 SCRA 630 (1993]).
b)
Ordinances approved by municipalities under its territorial jurisdiction;
SUGGESTED ANSWER:
The RTC may not take judicial notice of ordinances approved by municipalities under its
territorial jurisdiction in the absence of statutory authority, except on appeal from the municipal
trial courts which took judicial notice of the ordinance in question. (U.S. v. Blanco, 37 Phil. 126
[1917]; U.S. v. Hernandez, 31 Phil. 342 [1915]).
c)
Foreign laws:
SUGGESTED ANSWER:
The RTC may not generally take judicial notice of foreign laws (In re Estate of Johnson, 39
Phil. 156 [1918]); Fluemerv. Hix, 54 Phil. 610 [1930]), which must be proved like any other matter
of fact (Sy Joe Lieng v. Sy Quia, 16 Phil. 137 [1910]) except in a few instances, when the court in the
exercise of its sound judicial discretion, may take notice of foreign laws where Philippine courts are
evidently familiar with them, such as the Spanish Civil Code, which had taken effect in the
Philippines, and other allied legislation (Pardo v. Republic, 85 Phil. 324 [19507;Delgado v. Republic,
L-2546, [January 28, 1950]).
d)
Rules and Regulations issued by quasi-judicial bodies implementing statutes;
SUGGESTED ANSWER:
The RTC may take judicial notice of Rules and Regulations issued by quasi-judicial bodies
implementing statutes, because they are capable of unquestionabledemonstration. (Lalchand
Chattamalv. Insular Collector of Customs, G.R. No. 16347 [Nov. 3, 1920J).
e)
Rape may be committed even in public places.
SUGGESTED ANSWER:
The RTC may take judicial notice of the fact that rape may be committed even in public
places. The public setting" of the rape is not an indication of consent (People u. Tongson, 194 SCRA
257 [1991]). The Supreme Court has taken judicial notice of the fact that a man overcome by
perversity and beastly passion chooses neither the time, place, occasion nor victim. (People v.
269
Barcelona, 191 SCRA 100 [1990]).

a)
b)
How do you prove a written foreign law?
c)
Suppose a foreign law was pleaded as part of the defense of defendant but no
evidence was presented to prove the existence of said law, what is the presumption to be
taken by the court as to the wordings of said law?
Answer:
a) The three instances when a Philippine court can take judicial notice of a foreign law are: (1)
when the Philippine courts are evidently familiar with the foreign law (Moran, Vol. 5, p.
34,1980 edition): (2) when the foreign law refers to the law of nations (Sec. 1 of Rule 129)
and, (3) when it refers to a published treatise, periodical or pamphlet on the subject of law if
the court takes judicial notice of the fact that the writer thereof is recognized in his
profession or calling as expert on the subject (Sec. 4(5, Rule 130).
b) A written foreign law may be evidenced by an official publication thereof or by a copy
attested by the officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate that such officer
has the custody, if the office in which the record is kept is in a foreign country, the certificate
may be made by a secretary of the embassy or legation, consul general, consul, vice-consul,
or consular agent or by any officer in the foreign service of the Philippines stationed in the
foreign country in which the record is kept, and authenticated by the seal of his office (Sec.
24, Rule 132, Zalamea v. CA, 228 SCRA 23).
c) The presumption is that, the wordings of the foreign law are the same as the local law.
(Northwest Orient Airlines v. Court of Appeals. 241 SCRA 192; Moran, Vol. 6, page 34, 1980
edition; Urn v. Collector of Customs, 36 Phil. 472). This is known as the processual
presumption.
a)
The Philippine court can also take judicial notice of a foreign law: 1) when the foreign
statute is accepted by the Philippine government. (Rep. v. Guanzon, 61 SCRA 360); 2) when a
foreign judgment containing foreign law is recognized for enforcement (Sec. 48, Rule 39); and 3) if
it refers to common law doctrines and rules from which many of our laws were derived (Alzua v.
Johnson (21 Phil. 308]).
b)
A written foreign law is proved by presenting a published treatise, periodical or pamphlet
on said foreign law if the court may take judicial notice, or a witness expert in the subject testifies,
that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject (Sec. 46, Rule 130).
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C. Object (real) evidence

1. Nature of object evidence
Q: May a private document be offered and admitted in evidence both as documentary
evidence and as object evidence? Explain. (2005 Bar Question)
SUGGESTEDANSWER:
Yes. A private document may be offered and admitted in evidence both as documentary
evidence and as object evidence. A document can also be considered as an object for purposes of
the case. Objects as evidence are those addressed to the senses of the court. (Sec. 1, Rule 130, Rules
of Court.) Documentary evidence consists of writings or any material containing letters, words,
numbers, figures, symbols or other modes of written expressions, offered as proof of their contents.
(Sec. 2, Rule 130, Rules of Court) A tombstone may be offered in evidence to prove what is written
on it and if the same tombstone is found on a tomb, then it is object evidence. It can be considered
as both documentary and object evidence. (See Gupit, Jr., Revised Rules of Evidence, 1989, p. 12.)
Q: At the trial of Ace for violation of the Dangerous Drugs Act, the prosecution offers in
evidence a photocopy of the marked P100.00 bills used in the "buy-bust" operation. Ace
objects to the introduction of the photocopy on the ground that the Best Evidence Rule
prohibits the introduction of secondary evidence in lieu of the original. (1994 Bar Question)
1)
Is the photocopy real (object) evidence or documentary evidence?
2)
Is the photocopy admissible in evidence?
Answer:
1)
The photocopy of the marked bills is real (object) evidence not documentary evidence,
because the marked bills are real evidence.
2)
Yes, the photocopy is admissible in evidence, because the best evidence rule does not apply
to object or real evidence. [People v. Tandoy, 192 SCRA 28).
2. Rule on DNA Evidence (A.M. No. 06-11-5-SC)
a. Assessment of probative value of DNA evidence and admissibility
Q: In a prosecution for rape, the defense relied on Deoxyribonucleic Acid (DNA) evidence
showing that the semen found in the private part of the victim was not identical with that of
the accused's. As private prosecutor, how will you dispute the veracity and accuracy of the
results of the DNA evidence? (3%)
SUGGESTED ANSWER:
As private prosecutor, I shall try to discredit the results of the DNA test by questioning and
possibly impugning the integrity of the DNA profile by showing a flaw/error in obtaining the
biological sample, or in the chain of custody of the biological sample obtained; the testing
methodology employed; the scientific standard observed; the forensic DNA laboratory which
conducted the test; and the qualification, training and experience of the forensic laboratory
personnel who conducted the DNA testing.
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(a) The Vallejo standard refers to jurisprudential norms considered by the court in assessing
the probative value of DNA evidence. (2009 Bar Question)
SUGGESTED ANSWER:
TRUE. In People v. Vallejo, 382 SCRA192 (2002), it was held that in assessing the probative
value of DNA evidence, courts should consider, among others things, the following data: how the
samples were collected, how they were handled, the possibility of contamination of the samples, the
procedure followed in analyzing the samples, whether the proper standards and procedures were
followed in conducting the tests, and the qualification of the analyst who conducted the tests.
D. Documentary evidence
1. Meaning of documentary evidence
Q: May a private document be offered and admitted in evidence both as documentary
evidence and as object evidence? Explain. (2005 Bar Question)
SUGGESTEDANSWER:
Yes. A private document may be offered and admitted in evidence both as documentary
evidence and as object evidence. A document can also be considered as an object for purposes of
the case. Objects as evidence are those addressed to the senses of the court. (Sec. 1, Rule 130, Rules
of Court.)
Documentary evidence consists of writings or any material containing letters, words,
numbers, figures, symbols or other modes of written expressions, offered as proof of their contents.
(Sec. 2, Rule 130, Rules of Court) A tombstone may be offered in evidence to prove what is written
on it and if the same tombstone is found on a tomb, then it is object evidence. It can be considered
as both documentary and object evidence. (See Gupit, Jr., Revised Rules of Evidence, 1989, p. 12.)
2. Best Evidence Rule
a. Meaning of the rule
Q: State or explain briefly the Best Evidence Rule. (1988 Bar Question)
Answer:
The Best Evidence Rule provides that there can be no evidence of a writing the contents of
which is the subject of inquiry, other than the original writing itself, except in the following cases:
1)
When the original has been lost, destroyed, or cannot be produced in court;
2)
When the original is in the possession of the party against whom the evidence is offered,
and the latter fails to produce it after reasonable notice;
3)
When the original is a record or other document in the custody of a public officer;
4)
When the original has been recorded in an existing record a certified copy of which is made
evidence by law;
5)
When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from them is only
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the general result of the whole. (Sec. 2 of Rule 130)

b. When applicable
Q: Why is the Best Evidence Rule" often described as a misnomer? (1994 Bar Question)
Answer:
The best evidence rule is a misnomer because it merely requires the best evidence available
and. in the absence thereof; allows the introduction of secondary evidence.
Alternative Answer:
The best evidence rule is a misnomer because it is applicable only to documentary evidence
and not to testimonial and object evidence.
Q: At the trial of Ace for violation of the Dangerous Drugs Act, the prosecution offers in
evidence a photocopy of the marked P100.00 bills used in the "buy-bust" operation. Ace
objects to the introduction of the photocopy on the ground that the Best Evidence Rule
prohibits the introduction of secondary evidence in lieu of the original. (1994 Bar Question)
1)
xxx
2)
Is the photocopy admissible in evidence?
Answer:
1)
xxx
2)
Yes, the photocopy is admissible in evidence, because the best evidence rule does not apply
to object or real evidence. [People v. Tandoy, 192 SCRA 28).
c. Requisites for introduction of secondary evidence
Q: Ajax Power Corporation, a utility company, sued in the Regional Trial Court to enforce a
supposed right of way over a property owned by Simplicio. At the ensuing trial, Ajax
presented its retired field auditor who testified that he know for a fact that a certain sum of
money was periodically paid to Simplicio for some time as consideration for a right of way
pursuant to a written contract. The original contract was not presented. Instead, a purported
copy, identified by the retired field auditor as such, was formally offered as part of his
testimony. Rejected by the trial court, it was finally made the subject of an offer of proof by
Ajax.
Can Ajax validly claim that it had sufficiently met its burden of proving the existence of the
contract establishing its right of way? Explain. (1992 Bar Question)
Suggested Answer:
No, Ajax had not sufficiently met its burden of proving the existence of the written contract
because it had not laid the basis for the admission of a purported copy thereof as secondary
evidence. Ajax should have first proven the execution of the original document and its loss or
destruction. (Sec. 5 of Rule 130)
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Q: Defendant was declared in default by the Regional Trial Court (KTC). Plaintiff was allowed
to present evidence in support of his complaint. Photocopies of official receipts and original
copies of affidavits were presented in court, identified by plain tiff on the witness stand and
marked as exhibits. Said documents were offered by plaintiff and admitted in evidence by
the court on the basis of which the RTC rendered judgment in favor of the plaintiff, pursuant
to the relief prayed for. Upon receipt of the judgment, defendant appeals to the Court of
Appeals claiming that the judgment is not valid because the RTC based its judgment on mere
photocopies and affidavits of persons not presented in court.
a)
Is the claim of defendant valid? Explain. (3%)
b)
Will your answer be the same if the photocopies of official receipts and photocopies
of affidavits were attached to the position paper submitted by plaintiff in an action for
unlawful detainer filed with the Municipal Trial Court on which basis the court rendered
Judgment in favor of plaintiff? Explain. (2%) (2000 Bar Question)
SUGGESTED ANSWER:
a)
The claim of defendant is not valid because under the 1997 Rules, reception of evidence is
not required. After a defendant is declared in default, the court shall proceed to render Judgment
granting the claimant such relief as his pleading may warrant, unless the court in its discretion
requires the claimant to submit evidence, which may be delegated to the clerk of court. (Sec. 3, Rule
9, 1997 Rules of Civil Procedure)
ALTERNATIVE ANSWER:
The claim of defendant is valid, because the court received evidence which it can order in its own
discretion, in which case the evidence of the plaintiff must pass the basic requirements of
admissibility.
SUGGESTED ANSWER:
b)
The claim of defendant is valid, because although summary procedure requires merely the
submission of position papers, the evidence submitted with the position paper must be admissible
in evidence. (Sec. 9 of the Revised Rule on Summary Procedure). Photocopies of official receipts and
affidavits are not admissible without proof of loss of the originals. (Sec. 3 of Rule 130)
Q: When A loaned a sum of money to B, A typed a single copy of the promissory note, which
they both signed. A made two photo (xeroxed) copies of the promissory note, giving one copy
to B and retaining the other copy. A entrusted the typewritten copy to his counsel for
safekeeping. The copy with As counsel was destroyed when the law office was burned.
(a)
In an action to collect on the promissory note, which is deemed to be the "original"
copy for the purpose of the "Best Evidence Rule"?
(b)
Can the photocopies in the hands of the parties be considered "duplicate original
copies"?
(c)
As counsel for A, how will you prove the loan given to A and B? (1997 Bar Question)
Answer:
(a)
The copy that was signed and lost is the only original" copy for purposes of the Best
274
Evidence Rule. (Sec. 4[b] of Rule 130).

(b)
No. They are not duplicate original copies because there are photocopies which were not
signed (Mahilum v. Court of Appeals, 17 SCRA 462). They constitute secondary evidence. (Sec. 5 of
Rule 130).
(c)
The loan given by A to B may be proved by secondary evidence through the xeroxed copies
of the promissory note. The rules provide that when the original document is lost or destroyed, or
cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of
its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its
contents in some authentic document, or by the testimony of witnesses in the order stated. (Sec. 5
of Rule 130).
Q: When is an electronic evidence regarded as being the equivalent of an original document
under the Best Evidence Rule? (2003 Bar Question)
SUGGESTED ANSWER:
An electronic document shall be regarded as the equivalent of an original
document under the Best Evidence Rule if it is a printout or output readable by sight or
other means, shown to reflect the data accurately. (Sec. 1 of Rule 4)
3. Rules on Electronic Evidence (A.M. No. 01-7-01-SC)
a. Scope; coverage; meaning of electronic evidence; electronic data message
[a]
xxx
[b]
xxx
[c]
xxx
[d]
An electronic document is the equivalent of an original document under the Best
Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect
the data accurately. (2009 Bar Question)
SUGGESTED ANSWER:
TRUE. This statement is embodied in Sec.l, Rule 4 of A.M. No. 01-7-01-SC, re: Rules on
Electronic Evidence.
Q: While window-shopping at the mall on August 4, 2008, Dante lost his organizer including
his credit card and billing statement. Two days later, upon reporting the matter to the credit
card company, he learned that a. one-way airplane ticket was purchased online using his
credit card for a flight to Milan in mid-August 2008. Upon extensive inquiry with the airline
company, Dante discovered that the plane ticket was under the name of one Dina Meril.
Dante approaches you for legal advice.
275
A.
xxx
B.
Suppose an Information is filed against Dina on August 12, 2008 and she is
immediately arrested. What pieces of electronic evidence will Dante have to secure in order
to prove the fraudulent online transaction? (2%) (2010 Bar Question)
SUGGESTED ANSWER:
He will have to present (a) his report to the bank that he lost his credit card (b) that the
ticket was purchased after the report of the lost add.(c) the purchase of one-way ticket.
Dante should bring an original (or an equivalent copy) printout of: 1)the online ticket
purchase using his credit card; 2) the phone call log to show that he already alerted the credit card
company of his loss; and 3) his credit card billing statement-bearing the online ticket transaction.
b. Probative value of electronic documents or evidentiary weight; method of proof
Q: State the rule on the admissibility of an electronic evidence. (2003 Bar Question)
SUGGESTED ANSWER:
Whenever a rule of evidence refers to the term writing, document, record,
instrument, memorandum or any other form of writing, such term shall be deemed to
include an electronic document as defined in these Rules. (Sec. 1 of Rule 3, Rules on
Electronic Evidence effective August 1,2001).
An electronic document is admissible in evidence if it complies with the rules on
admissibility prescribed by the Rules of Court and related laws and is authenticated in the
manner prescribed by these Rules. (Sec. 2 of Rule 3, Id.). The authenticity of any private
electronic document must be proved by evidence that it had been digitally signed and
other appropriate security measures have been applied. (Sec. 2 of Rule 5, Id.).
4. Parol Evidence Rule
Q: State or explain briefly the Parol Evidence Rule. (1988 Bar Question)
The Parol Evidence Rule provide that when the terms of an agreement have been reduced to
writing, it is to be considered as containing all such terms, and, therefore, there can be, between the
parties and their successors in interest, no evidence of the terms of the agreement other than the
contents of the writing, except in the following cases:
1)
Where a mistake or imperfection of the writing, or its failure to express the true intent and
agreement of parties, or the validity of the agreement is put in issue by the pleadings;
2)
When there is an intrinsic ambiguity in the writing.
The term agreement includes wills. (Sec. 7 of Rule 130)

a. Application of the parol evidence rule
Q: Pedro filed a complaint against Lucio for the recovery of a sum of money based on a
promissory note executed by Lucio. In his complaint, Pedro alleged that although the
promissory note says that it is payable within 120 days, the truth is that the note Is payable
immediately after 90 days but that if Pedro is willing, he may, upon request of Lucio give the
276
latter up to 120 days to pay the note. During the hearing, Pedro testified that the truth is that
the agreement between him and Lucio is for the latter to pay immediately after ninety day's
time. Also, since the original note was with Lucio and the latter would not surrender to
Pedro the original note which Lucio kept In a place about one day's trip from where he
received the notice to produce the note and in spite of such notice to produce the same
within six hours from receipt of such notice, Lucio failed to do so. Pedro presented a copy of
the note which was executed at the same time as the original and with identical contents.
a)
Over the objection of Lucio, will Pedro be allowed to testify as to the true agreement
or contents of the promissory note? Why? (2%)
b)
Over the objection of Lucio, can Pedro present a copy of the promissory note and
have it admitted as valid evidence in his favor? Why? (3%) (2001 Bar Question)
SUGGESTED ANSWER:
a)
Yes, because Pedro has alleged in his complaint that the promissory note does not express
the true intent and agreement of the parties. This is an exception to the parol evidence rule. [Sec.
9(b) of Rule 130, Rules of Court)
b)
Yes. The copy in the possession of Pedro is a duplicate original because it was executed at
the same time as the original and with identical contents. [Sec. 4 (b) of Rules 130). Moreover, the
failure of Lucio to produce the original of the note is excusable because he was not given reasonable
notice, a requirement under the Rules before secondary evidence may be presented. (Sec. 6 of Rule
130, Rules of Court) ,
Note: The promissory note is an actionable document and the original or a copy thereof should
have been attached to the complaint. (Sec. 7 of Rule 8, 1997 Rules of Civil Procedure) In such a case,
the genuineness and due execution of the note, if not denied under oath, would be deemed
admitted. (Sec. 8 of Rule 9,1997Rules of Civil Procedure)
5. Authentication and proof of documents
a. When evidence of authenticity of a private writing is not required (ancient documents)
Q: In the trial court of a case on July 5, 1990, plaintiff offered in evidence a receipt dated July
7, 1959 issued by defendant company which was found in a cabinet for receipts of payment.
It is without any blemish or alteration. As no witness testified on the execution and
authenticity of the document, defendant moved for the exclusion of this receipt
notwithstanding that it is a private writing.
Should the said motion be granted? Explain your answers. (1990 Bar Question)
Answer:
No, because when a private document is more than thirty years old and is produced from
custody in which it would naturally be found if genuine and is unblemished by any alterations or
circumstances of suspicion, no other evidence of its authenticity need be given. (Sec. 21 of Rule
132)
b. Public documents as evidence; proof of official record
Q: In a civil case, plaintiff filed on April 19, 1991, an ex parte motion for execution of
277
judgment. Upon receiving it, the presiding judge examined the record and Issued on the
same day an order granting the motion since, as stated in his order, the Judgment is now
final and executory because the sheriffs return shows that the decision was property served
upon the defendant on April 3, I99i, and no appeal was perfected on time." The defendant
then filed a motion to set aside the order of execution, contending that the order is void on
two grounds: (1) it violates the rule on three-day notice for motions; and (2) the date of
service, April 3,1991, entered in the sheriffs return is a typographical error because service
was actually made on April 8. 1991, so that when the court ordered execution on April
19,1991, the decision was not yet final and executory.
At the hearing of the motion, the defendant cited several cases on the heed to notify the
adverse party before a contentious motion can be resolved. He further argued that the
sheriffs return, being hearsay, has to be confirmed by the sheriff on the witness stand when
an entry therein is assailed, because in that situation the proponent of the return has the
burden of proving its correctness. This cannot be done unless the sheriff testifies in court
and is correspondingly subjected to cross-examination. The sheriff was not presented in
court as a witness.
Decide the motion to set aside the order of execution, with reasons. (1992 Bar Question)
Suggested Answer:
Motion to set aside order of execution denied.
A motion for execution of a final and executory judgment is not a contentious
motion that requires a three-day notice before resolution. Such a motion may be granted
ex parte. (Far Eastern Surety & Insurance Co. vs. Hernandez, 67 SCRA 256)
The sheriffs return is a public document made in the performance of a duty by a
public officer and is prima facie evidence of the facts stated therein. (Sec. 23 of Rule 132)
Hence there was no need for the sheriff to testify unless defendant had presented
evidence contradicting the sheriffs return.
c. Proof of lack of record
Q: X was charged with robbery. On the strength of a warrant of arrest issued by the court, X
was arrested by police operatives. They seized from his person a handgun. A charge for
illegal possession of firearm was also filed against him. In a press conference called by the
police, X admitted that he had robbed the victim of jewelry valued at P500.000.00.
The robbery and illegal possession of firearm cases were tried jointly. The prosecution
presented in evidence a newspaper clipping of the report to the reporter who was present
during the press conference stating that X Admitted the robbery. It likewise presented a
certification of the PNP Firearms and Explosives Office attesting that the accused had no
license to carry any firearm. The certifying officer, however, was not presented as a witness.
Both pieces of evidence were objected to by the defense.
(a)
Is the newspaper clipping admissible in evidence against X?
(b)
Is the certification of the PNP Firearm and Explosives Office without the certifying
officer testifying on it admissible in evidence against X? (2003 Bar Question)
SUGGESTED ANSWER:
(a)
Yes, the newspaper clipping is admissible in evidence against X. Regardless of the truth or
278
falsity of a statement, the hearsay rule does not apply and the statement may be shown where the
fact that it is made is relevant. Evidence as to the making of such statement is not secondary but
primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to
the existence of such fact. (Gotesco Investment Corporation vs. Chatto, 210 SCRA 18 [1992]).
(b)
Yes, the certification is admissible in evidence against X because a written statement signed
by an officer having the custody of an official record or by his deputy that after diligent search no
record or entry of a specified tenor is found to exist in the records of his office, accompanied by a
certificate as above provided, is admissible as evidence that the records of his office contain no such
record or entry. (Sec. 28 of Rule 132).
E. Testimonial evidence
1. Qualifications of a witness
Q: Al was accused of raping Lourdes. Only Lourdes testified on how the crime was
perpetrated. On the other hand, the defense presented Als wife, son and daughter to testify
that A1 was with them when the alleged crime took place. The prosecution interposed timely
objection to the testimonies on the ground of obvious bias due to the witnesses close
relationship with the accused.
If you were the Judge:
1)
2)
Will the fact that the version of the defense is corroborated by three witnesses suffice
to acquit Al? Why? (1994 Bar Question)
Answer:
1)
If I were the Judge, I would overrule the objection. Close relationship to a party is not a
ground to disqualify a witness. (Sec. 20. Rule 130)
2)
No. Witnesses are not numbered but weighed. Positive identification prevails over the
defense of alibi. Alibi is easily fabricated and must be proved clearly and convincingly. (People v.
Gani. 139 SCRA 301 [1985])
Q: Louise is being charged with the frustrated murder of Roy. The prosecution's lone
witness. Mariter, testified to having seen Louise prepare the poison which she later
surreptitiously poured into Roys wine glass. Louise sought the disqualification of Mariter as
witness on account of her previous conviction for perjury. (1994 Bar Question)
1)
Rule on Louises contention.
2)
Can Mariter be utilized as state witness if she is a co-accused in the criminal case?
Answer:
1)
The contention of Louise is not correct. Mariter cannot be disqualified from being a witness
on account of her previous conviction of perjury. Previous conviction is not a disqualification
because, in this case, it is not so provided by law. (Sec. 20, Rule 130).
279
2)
Mariter, however, cannot be utilized as a state witness if she is a co-accused in a criminal
case because an accused can be discharged as a state witness if among five requirements, the
accused has not at any time been convicted of any offense involving moral turpitude. (Sec. 9, Rule
119).
2. Competency versus Credibility of a witness
1.
xxx
2.
Competency of the witness and credibility of the witness.
3.
Legislative facts and adjudicative facts.(2004 Bar Question)
SUGGESTED ANSWER:
1.
xxx
2.
Competency of the witness refers to a witness who can perceive, and perceiving, can make
known his perception to others (Sec. 20 of Rule 130), while credibility of the witness refers to a
witness whose testimony is believable.
3.
Legislative facts refer to facts mentioned in a statute or in an explanatory note, while
adjudicative facts are facts found in a court decision.
3. Disqualifications of witnesses
a. By reason of mental capacity or immaturity
b. By reason of marriage
Q: On March 12, 2008, Mabini was charged with Murder for fatally stabbing Emilio. To prove
the qualifying circumstance of evident premeditation, the prosecution introduced on
December 11, 2009 a text message, which Mabini's estranged wife Gregoria had sent to
Emilio on the eve of his death, reading: "Honey, pa2tayin u ni Mabini. Mtgaln nyang plano i2.
Mg ingat u bka ma tsugi k." (2010 Bar Question)
A. A subpoena ad testificandum was served on Gregoria. For her to be presented for the
purpose of identifying her cellphone and the text message. Mabini objected to her
Presentation on the ground of marital privilege. Resolve. (3%)
SUGGESTED ANSWER:
The objection should be sustained on the ground of the marital disqualification rule (Rule
130, Sec. 22); not on the ground of the "marital privilege" communication rule. (Rule 130, Sec. 24).
The marriage between Mabini and Gregoria is still subsisting and the situation at bar does not come
under the exceptions to the disqualification by reason of marriage.
B. Suppose Mabini's objection in question A was sustained. The prosecution thereupon
announced that it would be presenting Emilio's wife Graciana to' identify Emilio's cellphone
bearing Gregoria's text message. Mabini objected again. Rule on the objection. (2%)
SUGGESTED ANSWER:
280
The objection should be overruled. The testimony of Graciana is not covered by the said
marital disqualification rule because she is not the wife of Mabini. Besides, Graciana will identify
only the cellphone as that of her husband Emilio, not the messages therein which to her are
hearsay.
Q: Leticia was estranged from her husband Paul for more than a year due to his suspicion
that she was having an affair with Manuel, their neighbor. She was temporarily living with
her sister in Pasig City.
For unknown reasons, the house of Leticia's sister was burned, killing the latter. Leticia
survived. She saw her husband in the vicinity during the incident. Later, he was charged with
arson in an Information filed with the Regional Trial Court, Pasig City.
During the trial, the prosecutor called Leticia to the witness stand and offered her testimony
to prove that her husband committed arson.
Can Leticia testify over the objection of her husband on the ground of marital privilege? 5%
(2006 Bar Question)
SUGGESTED ANSWER:
Yes, Leticia can testify over the objection her husband. As a general rule, neither the
husband nor the wife, during their marriage, may testify for or against the other without the
consent of the affected spouse, except in civil case by one against the other, or in a criminal case for
a crime committed by one against the other or the latters direct descendants or ascendants (Rule
130t sec. 22, Revised Rules on Evidence). In a number of cases, it has been held that the marital
disqualification is aimed at protecting the harmony and confidences of marital relations; hence,
where the marital and domestic relations are so strained that there is no more harmony to be
preserved nor peace and tranquility which may be disturbed, the marital disqualification no longer
applies.
The act of Paul in setting fire to the house of his sister-in-law, knowing fully well that his
wife was there, is an act totally alien to the harmony and confidences of marital relation which the
disqualification primarily seeks to protect. The criminal act complained of had the effect of directly
and vitally impairing the conjugal relation. It underscored the fact that the marital and domestic
relations between her and the accused-husband have become so strained that there is no more
harmony, peace or tranquility to be preserved (Alvarez v. Ramirez, 473 SCRA 72 [2005]; Ordono v.
Daquigan, 62 SCRA 270 [1975]).
Q: XYZ, an alien, was criminally charged ol promoting and facilitating child prostitution and
other sexual abuses under Rep. Act No. 7610. The principal witness against him was his
Filipina wife, ABC. Earlier, she had complained that XYZs hotel was being used as a center
for sex tourism and child trafficking. The defense counsel for XYZ objected to the testimony
of ABC at the trial of the child prostitution case and the introduction of the affidavits she
executed against her husband as a violation of espousal confidentiality and marital privilege
rule. It turned out that DEF, the minor daughter of ABC by her first husband who was a
Filipino, was molested by XYZ earlier. Thus, ABC had filed for legal separation from XYZ
since last year.
May the court admit the testimony and affidavits of the wife, ABC, against her husband, XYZ,
in the criminal case involving child prostitution? Reason. (5%) (2004 Bar Question)
281
SUGGESTEDANSWER:
Yes. The court may admit the testimony and affidavits of the wife against her husband in the
criminal case where it involves child prostitution of the wife's daughter. It is not covered by the
marital privilege rule. One exception thereof is where the crime is committed by one against the
other or the latters direct descendants or ascendants. (Sec. 22, Rule 130). A crime by the husband
against the daughter is a crime against the wife and directly attacks or vitally impairs the conjugal
relation. (Ordono v. Daquigan, 62 SCRA 270 [1975]).
Q: Vida and Romeo are legally married. Romeo is charged in court with the crime of serious
physical injuries committed against Selmo, son of Vida, step-son of Romeo. Vida witnessed
the infliction of the injuries on Selmo by Romeo. The public prosecutor called Vida to the
witness stand and offered her testimony as an eyewitness. Counsel for Romeo objected on
the ground of the marital disqualification rule under the Rules of Court.
(a)
Is the objection valid? (3%)
(b)
Will your answer be the same if Vida-s testimony is offered in a civil case for
recovery of personal property filed by Selmo against Romeo? (2%) (2000 Bar Question)
SUGGESTED ANSWER:
(a)
No. While neither the husband nor the wife may testify for or against the other without the
consent of the affected spouse, one exception is if the testimony of the spouse is in a criminal case
for a crime committed by one against the other or the latters direct descendants or ascendants.
(Sec. 22, Rule 130, Rules of Court). The case falls under this exception because Selma is the direct
descendant of the spouse Vida.
(b)
No. The marital disqualification rule applies this time. The exception provided by the rules
is in a civil case by one spouse against the other. The case here involves a case by Selmo for the
recovery of personal property against Vidas spouse, Romeo.
Q: C is the child of the spouses H and W. H sued his wife W for judicial declaration of nullity of
marriage under Article 36 of the Family Code. In the trial, the following testified over the
objection of W: C, H and D, a doctor of medicine who used to treat W. Rule on Ws objections
which are the following:
1.
H cannot testify against her because of the rule on marital privilege; (1%)
2.
C cannot testify against her because of the doctrine on parental privilege; and (2%]
3.
D cannot testify against her because of the doctrine of privileged communication
between patient and physician. (12%) (1998 Bar Question)
SUGGESTEDANSWER:
1.
The rule of marital privilege cannot be invoked in the annulment case under Rule 36 of the
Family Code because it is a civil case filed by one against the other. (Sec. 22, Rule 130, Rules of
Court.)
2.
The doctrine of parental privilege cannot likewise be invoked by W as against the
testimony of C, their child. C may not be compelled to testify but is free to testify against her. (Sec.
25, Rule 130, Rules of Court; Art. 215, Family Code.)
282
3.
D, as a doctor who used to treat W, is disqualified to testify against W over her objection as
to any advice or treatment given by him or any information which he may have acquired in his
professional capacity. (Sec. 24 (c). Rule 130, Rules of Court.)
ALTERNATIVE ANSWER:
If the doctor's testimony is pursuant to the requirement of establishing the psychological
incapacity of W, and he is the expert called upon to testify for the purpose, then it should be
allowed. (Republic vs. Court of Appeals and Molina. 268 SCRA 198.)
Q: At As trial for Bs murder, the defense attempts to present as its witness his widow, X. She
is to testify that just before B died, she approached his sprawled and bloodied husband and
asked who stabbed him. B, conscious of his impending death, named Y as his assailant. The
prosecution moves to stop X from testifying because her testimony (1) is hearsay, and (2)
will be violative of the rule on privileged marital communication.
Rule on the prosecutions motion. Explain. (1996 Bar Question)
Answer:
I will deny the prosecution's motion. The testimony of X is admissible as a dying declaration,
which is an exception to the hearsay rule. (Sec. 37 of Rule 130) Moreover, it is not a privileged
marital communication. (Sec. 24-A of Rule 130)
Q: Allan and Narita were married on 1 August 1989. After two months Narita told Allan in
confidence that 10-year old Liza whom she claimed to be her niece was actually her daughter
by a certain Basilio, a married man.
In 1992 Narita obtained a judicial decree of nullity of her marriage with Allan on the latters
psychological incapacity to fulfill his marital obligations. When the decree became final, Liza,
assisted by Narita, filed ten (10) cases of rape against Allan purportedly committed in 1991.
During the trial Narita was called to the witness stand to testify as a witness against Allan
who objected thereto on the ground of marital disqualification.
1.
As public prosecutor, how would you meet the objection? Explain.
2.
Suppose Narilas testimony was offered while the decision nullifying her marriage to
Allan was pending appeal, would your answer be different? Explain.
3.
Suppose Narita died during the pendency of the appeal, and soon after, the legal wife
of Basilio sued for legal separation on sexual infidelity in view of Basilio's love affair with
Narita. At the trial Allan was called by Basilios wife to testify that Narita confided to him
(Allan) during their marriage that Liza was her love child by Basilio.
As counsel for Basilio, can you validly object to the presentation of Allan as a witness for the
plaintiff? Explain. (1995 Bar Question)
Answer:
1.
The objection should be overruled because the ground of marital disqualification may be
invoked only during the marriage. When Narita was called to the witness stand, the judicial decree
of nullity of her marriage had already become final. (Sec. 22, Rule 130)
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2.
No, because this ground may not be invoked in a criminal case for a crime committed by
one against the other or the latter's direct descendants or ascendants. In this case Liza was the
daughter of Narita. (Sec. 24 (a), Rule 130)
3.
Yes, I could validly object to the presentation of Allan as a witness on the ground that the
communication of Narita was a privileged marital communication which could be invoked during or
after the marriage. Moreover, the testimony of Allan would be hearsay.
Q: Ody sued spouses Cesar and Baby for a sum of money and damages. At the trial, Ody called
Baby as his first witness. Baby objected, joined by Cesar, on the ground that she may not be
compelled to testify against her husband. Ody insisted and contended that after all, she
would just be questioned about a conference they had with the barangay captain, a matter
which is not confidential in nature. The trial court ruled in favor of Ody. Was the ruling
proper? Will your answjer be the same if the matters to be testified on were known- to Baby
or acquired by her prior to her marriage to Cesar? Explain. (1989 Bar Question)
Answer:
No. Under the Rules on Evidence, a wife cannot be examined for or against her husband
without his consent, except in a civil case by one against the other, or in a criminal case for a crime
committed by one against the other. Since the case was filed by Ody against the spouses Cesar and
Baby, Baby cannot be compelled to testify for or against Cesar without his consent. (Lemma vs.
Rodriguez, 23 SCRA 1166).
The answer would be the same if the matters to be testified on were known to Baby or
acquired by her prior to her marriage to Cesar, because the marital disqualification may be invoked
with respect to testimony on any fact. It is immaterial whether such matters were known to Baby
before or after her marriage to Cesar.
Q: Before the Regional Trial Court of Pasig is Special Proceedings No. 0001, entitled, In Re
Intestate Estate of Pedro Santos, deceased, Ana Santos, Petitioner. The Notice to Creditors to
file their claims against the estate of the deceased was duly published. Creditor Alfredo Cruz
duly filed his claim for a P10,000.00-loan to the deceased which became due and payable
before his death as evidenced by his (deceaseds) promissory note.
At the hearing of the Creditors Claim of Alfredo Cruz, he (Cruz) testified and duly identified
the Promissory Note.
Counsel objected to the testimony of Mr. Cruz claiming that he (Cruz) cannot testify as to
matters against the estate of a deceased person.
(a)
Is the objection valid? Explain.
(b)
Who are the persons disqualified to testify by reason of interest or relationship, as to
matters in which they are interested, directly or indirectly? (1988 Bar Question)
Answer:
(a)
xxx
(b)
Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted,

284
against an executor or administrator or other representative of a deceased person, or against a

person of unsound mind, upon a claim or demand against the estate of such deceased person or
against such person of unsound mind, cannot testify as to any matter of fact occurring before the
death of such deceased person or before such person became of unsound mind. (Dead mans Rule)
(2)
A husband can not be examined for or against his wife without her consent; nor a wife for or
against her husband without his consent, except in a civil case by one against the other, or in a
criminal case for a crime committed by one against the other. (Sec. 20(a) and (b) of Rule 130
(Marital Disqualification).
c. By reason of death or insanity of adverse party
(a)
The surviving parties rule bars Maria from testifying for the claimant as to what the
deceased Jose had said to her, in a claim filed by Pedro against the estate of Jose. (3%) (2007
Bar Question)
SUGGESTED ANSWER:
False. The said rule bars only parties-plaintiff and their assignors, or persons prosecuting a
claim against the estate of a deceased; it does not cover Maria who is a mere witness. Furthermore,
the disqualification is in respect of any matter of fact occurring before the death of said deceased
(Sec. 23, Rule 130, Rules of Court, Razon v. Intermediate Appellate Court, 207 SCRA 234 [1992]). It
is Pedro who filed the claim against the estate of Jose.
Q: Before the Regional Trial Court of Pasig is Special Proceedings No. 0001, entitled, In Re
Intestate Estate of Pedro Santos, deceased, Ana Santos, Petitioner. The Notice to Creditors to
file their claims against the estate of the deceased was duly published. Creditor Alfredo Cruz
duly filed his claim for a P10,000.00-loan to the deceased which became due and payable
before his death as evidenced by his (deceaseds) promissory note.
At the hearing of the Creditors Claim of Alfredo Cruz, he (Cruz) testified and duly identified
the Promissory Note.
Counsel objected to the testimony of Mr. Cruz claiming that he (Cruz) cannot testify as to
matters against the estate of a deceased person.
a)
Is the objection valid? Explain.
b)
Who are the persons disqualified to testify by reason of interest or relationship, as to
matters in which they are interested, directly or indirectly? (1988 Bar Question)
Answer:
a)
The objection is not valid because the authentication of the promissory note of the deceased
is not covered by the rule on surviving parties or the dead mans statute. Authentication is not a
matter of fact on which the claimants lips are sealed.
Alternative Answer:
The objection is valid because Mr. Cruz cannot testify as to any matter of fact occurring
before the death of the deceased. However, a witness other than the claimant may authenticate the
285
promissory note.
d. By reason of privileged communications
Shopping V made no mention of the pendency of the, criminal case in Sta. Maria.
A.
xxx
B.
xxx
C.
xxx
D.
xxx
E. Atty. L offered in the criminal case his affidavit respecting what he witnessed during the
incident. X's lawyer wanted to cross examine Atty. L who, however, objected on the ground
of lawyer client privilege. Rule on the objection. (2%) (2010 Bar Question)
SUGGESTED ANSWER:
The objection should be overruled. Lawyer-client privilege is not involved here. The subject
on which the counsel would be examined has been made public in the counsel would be examined
has been made public in the affidavit he offered and thus, no longer privileged, aside from the fact
that it is in respect of what the counsel witnessed during the incident and not to the communication
made by the client to him or the advice he gave thereon in his professional capacity.
Q: On August 15,2008, Edgardo committed estafa against Petronilo in the amount of P3
Million. Petronilo brought his complaint to the National Bureau of Investigation, which
found that Edgardo had visited his lawyer twice, the first time on August 14, 2008 and the
second on August 16, 2008; and that both visits concerned the swindling of Petronilo. During
the trial of Edgardo, the RTC issued a subpoena ad testificandum to Edgardos lawyer for him
to testify on the conversations during their first and second meetings. May the subpoena be
quashed on the ground of privileged communication? Explain fully. (4%)
SUGGESTED ANSWER:
No, The subpoena may not be simply quashed on the allegation that the testimony to be
elicited constitutes privileged communication. It may be noted that the accused committed the
crime of swindling on August 15, 2008, whereas he first visited his lawyer on August 14, 2008 or
before he committed the swindling. Clearly the conversations the accused had with his lawyer
during such first visit, before he committed the swindling cannot be protected by the privilege
between attorney and client because the crime had not been committed yet and it is no part of a
286
lawyers professional duty to assist or aid in the commission of a crime; hence not in the course of
professional employment.
The second visit by accused Edgardo to his lawyer on the next day (August 16, 2008) after
the swindling was committed may also suffer from the same infirmity as the conversations had
during their first meeting inasmuch as there could not be a complaint made immediately after the
estafa was committed. The privilege covering a lawyer-client relation under Sec. 24, (par(b), Rule
130, may not be invoked, as it is not a ground for quashal of a subpoena ad testificandum under
Section 4, Rule 21 of the Rules of Court.
Although the subpoena ad testificandum may not be quashed the privilege covers
conversations with a view to professional employment." It can be invoked at the trial but not to
quash the subpoena.
Q: A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila Bay while helping tow
another vessel, drowning five (5) of the crew in the resulting shipwreck. At the maritime
board inquiry, the four (4) survivors testified. SPS engaged Atty. Ely to defend it against
potential claims and to sue the company owning the other vessel for damages to the tug. Ely
obtained signed statements from the survivors. He also interviewed other persons, in some
instance making memoranda. The heirs of the five (5) victims filed an action for damages
against SPS.
Plaintiffs counsel sent written interrogatories to Ely, asking whether statements of
witnesses were obtained; if written, copies were to be .furnished; if oral, the exact provisions
were to be set forth in detail. Ely refused to comply, arguing that the documents and
information asked are privileged communication. Is the contention tenable? Explain.
SUGGESTED ANSWER:
Yes, the contention of counsel for SPS is tenable considering that he was acting in his
professional capacity in bringing about the statement he obtained from witnesses and the
memoranda he made. The notes, memoranda, and writings made by counsel in pursuance of his
professional duty, form part of his private and confidential files in the cases handled by him; hence
privileged (Air Philippines Corp. v. Pennswell, Inc., 540 SCRA 215 [2007]).
The oral statements secured by the lawyer from the witnesses may not be the subject of
discovery procedure not because they are privileged communication but because of the danger of
untruthfulness and inaccuracy. The account of the lawyer is likewise hearsay evidence. Besides,
plaintiffs counsel may obtain transcripts of the testimonies of the four survivors before the
maritime board inquiry.
On the other hand, under Rule 23, the lawyer may be examined regarding the existence of
the written statements of the survivors, including the description, nature, and custody thereof, not
being privileged communication. (Hickman v. Taylor, 329 US 495[1947]).
Q: A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila Bay while helping tow
another vessel, drowning five (5) of the crew in the resulting shipwreck. At the maritime
board inquiry, the four (4) survivors testified. SPS engaged Atty. Ely to defend it against
287
potential claims and to sue the company owning the other vessel for damages to the tug. Ely
obtained signed statements from the survivors. He also interviewed other persons, in some
instance making memoranda. The heirs of the five (5) victims filed an action for damages
against SPS.
Plaintiffs counsel sent written interrogatories to Ely, asking whether statements of
witnesses were obtained; if written, copies were to be .furnished; if oral, the exact provisions
were to be set forth in detail. Ely refused to comply, arguing that the documents and
information asked are privileged communication. Is the contention tenable? Explain.
SUGGESTED ANSWER:
Yes, the contention of counsel for SPS is tenable considering that he was acting in his
professional capacity in bringing about the statement he obtained from witnesses and the
memoranda he made. The notes, memoranda, and writings made by counsel in pursuance of his
professional duty, form part of his private and confidential files in the cases handled by him; hence
privileged (Air Philippines Corp. v. Pennswell, Inc., 540 SCRA 215 [2007]).
The oral statements secured by the lawyer from the witnesses may not be the subject of
discovery procedure not because they are privileged communication but because of the danger of
untruthfulness and inaccuracy. The account of the lawyer is likewise hearsay evidence. Besides,
plaintiffs counsel may obtain transcripts of the testimonies of the four survivors before the
maritime board inquiry.
On the other hand, under Rule 23, the lawyer may be examined regarding the existence of
the written statements of the survivors, including the description, nature, and custody thereof, not
being privileged communication. (Hickman v. Taylor, 329 US 495[1947])
Q: Allan and Narita were married on 1 August 1989. After two months Narita told Allan in
confidence that 10-year old Liza whom she claimed to be her niece was actually her daughter
by a certain Basilio, a married man.
In 1992 Narita obtained a judicial decree of nullity of her marriage with Allan on the latters
psychological incapacity to fulfill his marital obligations. When the decree became final, Liza,
assisted by Narita, filed ten (10) cases of rape against Allan purportedly committed in 1991.
During the trial Narita was called to the witness stand to testify as a witness against Allan
who objected thereto on the ground of marital disqualification.
1.
xxx
2.
xxx
3.
Suppose Narita died during the pendency of the appeal, and soon after, the legal wife
of Basilio sued for legal separation on sexual infidelity in view of Basilio's love affair with
Narita. At the trial Allan was called by Basilios wife to testify that Narita confided to him
(Allan) during their marriage that Liza was her love child by Basilio.
As counsel for Basilio, can you validly object to the presentation of Allan as a witness for the
plaintiff? Explain. (1995 Bar Question)
Answer:
288
1.
xxx
2.
xxx
3.
Yes, I could validly object to the presentation of Allan as a witness on the ground that the
communication of Narita was a privileged marital communication which could be invoked during or
after the marriage. Moreover, the testimony of Allan would be hearsay.
4. Examination of a witness
a. Order in the examination of an individual witness
i. Direct examination
ii. Cross examination
iii. Re-direct examination
iv. Re-cross examination
v. Recalling the witness
(a)
Aside from asking a witness to explain and supplement his answer in the crossexamination, can the proponent ask in re-direct examination questions on matters not dealt
with during cross-examination?
(b)
Aside from asking the witness on matters stated in his re-direct examination, can the
opponent in his re-cross-examination ask questions on matters not dealt with during the redirect?
(c)
After plaintiff has formally submitted his evidence, he realized that he had forgotten
to present what he considered an important evidence. Can he recall a witness?
Answer:
a)
Yes, on redirect examination, questions on matters not dealt with during the crossexamination may be allowed by the court in its discretion. (Sec. 7 of Rule 132).
b)
Yes, the opponent in his re-cross-examination may also ask questions on such other matters
as may be allowed by the court in its discretion. (Sec. 8. Rule 132).
c)
Yes, after formally submitting his evidence, the plaintiff can recall a witness with leave of
court. The court may grant or withhold leave in its discretion as the interests of justice may require.
(Sec. 9. Rule 132).
b. How the witness is impeached by evidence of inconsistent statements (laying the
predicate)
Q: In the examination of witnesses, what is meant by laying the predicate"? (1996 Bar
Question)
Answer:
289
Laying the predicate" is the procedure of impeaching a witness by evidence of prior

inconsistent statements. Before such a witness can be impeached, the prior statements must be
related to him, with the circumstances of the times and places and the persons present, and he must
be asked whether he made such statements, and if so, allowed to explain them. If the statements be
in writing they must be shown to him before any question is put to him concerning them. (Sec. 13 of
Rule 132)
c. Evidence of the good character of a witness
Q: X states on direct examination that he once knew the facts being asked but he cannot
recall them now. When handed a written record of the facts he testifies that the facts are
correctly stated, but that he has never seen the writing before.
Is the writing admissible as past recollection recorded? Explain. (1996 Bar Question)
Answer:
No, because for the written record to be admissible as past recollection recorded, it must
have been written or recorded by X or under his direction at the time when the fact occurred, or
immediately thereafter, or at any other time when the fact was fresh in his memory and he knew
that the same was correctly written or recorded. (Sec. 16 of Rule 132) But in this case X has never
seen the writing before.
d. Judicial Affidavit Rule (A.M. No. 12-8-8-SC)
(a)
xxx
(b) The One-Day Examination of Witness Rule abbreviates court proceedings by having a
witness fully examined in only one day during trial. (2009 Bar Question)
SUGGESTED ANSWER:
TRUE. Par. 5(i) of Supreme Court A.M. No. 03.1.09- SC requires that a witness has to be fully
examined in one (1) day only. This rule shall be strictly adhered to subject to the courts discretion
during trial on whether or not to extend the direct and/or cross-examination for justifiable reasons.
On the last hearing day allotted for each party, he is required to make his formal offer of evidence
after the presentation of his last witness and the opposing party is required to immediately
interpose his objection thereto. Thereafter, the judge shall make the ruling on the offer of evidence
in open court. However, the judge has the discretion to allow the offer of evidence in writing in
conformity with Section 35, Rule 132.
ALTERNATIVE ANSWER:
FALSE. This rule is not absolute: it will still allow the trial judge the discretion whether to
extend the direct and/or cross examination for justifiable reasons or not. The exercise of this
discretion may still result in wranglings as to the proper exercise of the trial court's discretion,
which can delay the proceedings.
290
5. Admissions and confessions

a. Res inter alios acta rule
Q: Bembol was charged with rape. Bembols father, Ramil, approached Artemon, the victims
father, during the preliminary investigation and offered P1 Million to Artemon to settle the
case. Artemon refused the offer.
b)
During trial, the prosecution presented Artemon to testify on Ramils offer and
thereby establish an implied admission of guilt. Is Ramils offer to settle admissible in
evidence? (3%) (2008 Bar Question)
SUGGESTED ANSWER:
No. The offer to settle not being made by the accused or with his participation is not
admissible against him under the rule of res inters alios acta. No implied admission of guilt can be
drawn from efforts to settle a criminal case out of court, where the accused had no participation in
such negotiation (People v. Godoy, 250 SCRA 676 [1995]).
ALTERNATIVE ANSWER:
It has been held, however, that the offer to settle made by relatives of the accused is
admissible as an implied admission of guilt. (People v. Salvador, 396 SCRA 298 [2003])
Q: X and Y were charged with murder. Upon application of the prosecution, Y was discharged
from the Information to be utilized as a state witness. The prosecutor presented Y as witness
but forgot to state the purpose of his testimony much less offer it in evidence. Y testified that
he and X conspired to kill the victim but it was X who actually shot the victim. The testimony
of Y was the only material evidence establishing the guilt of X. Y was thoroughly crossexamined by the defense counsel. After the prosecution rested its case, the defense filed a
motion for demurrer to evidence based on the following grounds:
(a) The testimony of Y should be excluded because its purpose was not initially stated
and it was not formally offered in evidence as required by Section 34, Rule 132 of the
Revised Rules of Evidence: and
(b) Ys testimony is not admissible against X pursuant to the rule on res inter alios acta",
Rule on the motion for demurrer to evidence on the above grounds. (2003 Bar Question)
SUGGESTED ANSWER:
The demurrer to the evidence should be denied because:
(a)
The testimony of Y should not be excluded because the defense counsel did not object to his
testimony despite the fact that the prosecutor forgot to state its purpose or offer it in evidence.
Moreover, the defense counsel thoroughly cross-examined Y and thus waived the objection.
(b)
The res inter alios acta rule does not apply because Y testified in open court and was
subjected to cross examination.
Q: A, while driving his car, ran over B. A visited B at the hospital and offered to pay for his
hospitalization expenses. After the filing of the criminal case against A for serious physical
injuries through reckless imprudence. As Insurance carrier offered to pay for the injuries
291
and damages suffered by B. The offer was rejected because B considered the amount offered
as inadequate.
(a)
Is the offer by A to pay the hospitalization expenses of B admissible in evidence?
(b)
Is the offer by As insurance carrier to pay for the injuries and damages of B
admissible in evidence? (1996 Bar Question)
Answer:
(a)
The offer by A to pay the hospitalization expenses of B is not admissible in evidence to
prove his guilt in both the civil and criminal cases. (Rule 130, Sec. 27. fourth par.).
(b)
No. It is irrelevant. The obligation of the insurance company is based on the contract of
insurance and is not admissible in evidence against the accused because it was not offered by the
accused but by the insurance company which is not his agent.
Q: During custodial investigation at the Western Police District, Mario Margal was informed
of his constitutional right to remain silent and to have competent and independent counsel.
He decided to waive his right to counsel and proceeded to make a statement admitting
commission of a robbery. In the same statement, he Implicated Antonio Carreon, his coconspirator in the crime. (1991 Bar Question)
(a)
Is Margals statement admissible in evidence against him?
Answer:
(a)
No, because under the Constitution, the right of Margal to remain silent and to counsel
during custodial investigation cannot be waived except in writing and in the presence of counsel,
and any confession or admission in violation of this provision is inadmissible in evidence against
him. (Sec. 12 of Art. I l l )
(b)
Is it admissible against Carreon as an exception to the res inter alios acta rule?
Answer:
No, because even assuming that the conspiracy is shown by evidence other than the
statement of Margal, the statement was made after the conspiracy had ceased. (Sec. 30 of Rule 130;
People v. Cabrera. 57 SCRA 714)
b. Confessions
Q: Distinguish extrajudicial admission from extrajudicial confession in criminal cases. (1996
Bar Question)
Answer:
An extrajudicial admission is a statement of fact which does not directly involve an
acknowledgment of guilt or criminal intent, while an extrajudicial confession is a declaration of an
accused that he has committed or participated in the commission of a crime.
Q: What are the requirements in order that an admission of guilt of an accused during a
custodial investigation be admitted in evidence? 2.5% (2006 Bar Question)
292
SUGGESTED ANSWER:
An admission of guilt during a custodial investigation is a confession. To be admissible in
evidence, the requirements are:
1) the confession must be voluntary
2) the confession must be made with the assistance of competent and independent counsel
3) the confession must be express
4) the confession must be in writing (People v. Principe, 381 SCRA 642 [2002]).
Q: X was arrested for the alleged murder of a 6-year Old lad. He was read his Miranda rights
immediately upon being apprehended.
In the course of his detention, X was subjected to three hours of non-stop interrogation. He
remained quiet until, on the 3rd hour, he answered "yes" to the question of whether "he
prayed for forgiveness for shooting down the boy." The trial court) interpreting X's answer
as an admission of guilt, convicted him.
On appeal, X's counsel faulted the trial court in its interpretation of his client's answer,
arguing that X invoked his Miranda rights when he remained quiet for the first two hours of
questioning. Rule on the assignment of error. (3%) (2010 Bar Question)
SUGGESTED ANSWER:
The assignment of error invoked by X's counsel is impressed with merit since there has
been no express waiver of X's Miranda rights. In order to have a valid waiver of the Miranda rights,
the same must be in writing and made in the presence of his counsel. The uncounseled extrajudicial
confession of X being without a valid waiver of his Miranda rights, is inadmissible, as well as any
information derived therefrom.
Q: A was accused of having raped X. Rule on the admissibility of the following pieces of
evidence:
1.
an offer of A to many X; and (3%)
2.
a pair of short pants allegedly left by A at the crime which the court, over the
objection of A, required him to put on, and when he did, it fit him well. (2%) (1998 Bar
Question)
SUGGESTED ANSWER:
1.
A's offer to marry X is admissible in evidence as an implied admission of guilt because rape
cases are not allowed to be compromised. (Sec. 27 of Rule 130; People us. Domingo, 226 SCRA 156.)
2.
The pair of short pants, which fit the accused well is circumstantial evidence of his guilt,
although standing alone it cannot be the basis of conviction. The accused cannot object to the court
requiring him to put the short pants on. It is not part of his right against self- incrimination because
it is a mere physical act.
293

1.
If the accused on the witness stand repeats his earlier uncounseled extrajudicial
confession implicating his co-accused in the crime charged, is that testimony admissible in
evidence against the latter? (3%)
2.
What is the probative value of a witness Affidavit of Recantation? (2%]
SUGGESTED ANSWER:
1.
Yes. The accused can testify by repeating his earlier uncounseled extrajudicial
confession, because he can be subjected to cross-examination.
2.
On the probative value of an affidavit of recantation, courts look with disfavor upon
recantations because they can easily be secured from witnesses, usually through intimidation or for
a monetary consideration. Recanted testimony is exceedingly unreliable. There is always the
probability that it will be repudiated. (Molina vs. People, 259 SCRA 138.)
Q: X. charged with rape with homicide, offered P 100,000.00 as amicable settlement to the
family of the victim. The family refused. During the trial, the prosecution presented in
evidence X's offer of compromise.
What is the legal implication of such offer? Explain. (1996 Bar Question)
Answer:
The oiler of P100,000.00 as amicable settlement in a criminal case for rape with homicide is
an implied admission of guilt. It does not fall within the exceptions of quasi-offenses or those
allowed by law to be compromised. (Sec. 27 of Rule 130)
Q: Pedro was charged with homicide for having hacked Ramon to death. Before the case
could be tried, the heirs of Ramon sought out Pedro and discussed with him the possibility of
settlement of the case. Pedro agreed to a settlement. When the heirs asked how much he was
willing to pay, Pedro offered P30,000 which the heirs accepted. Is the agreement to settle as
well as the offer to pay P30,000 by Pedro admissible in evidence against him as an implied
admission of guilt? Explain. (1989 Bar Question)
Answer:
Yes. Under the Rules on Evidence, in criminal cases which are not allowed by law to be
compromised, an offer of compromise by the accused may be received in evidence as an implied
admission of guilt. Since a criminal case for homicide is not allowed by law to be compromised,
Pedros offer of P30,000 for the settlement of the case, which the heirs accepted, is admissible in
evidence against him as an implied admission of guilt. (Sec. 24 of Rule 130)
No. Pedros offer was merely to buy peace. Since it was the heirs of Ramon and no Pedro
who initially offered to settle the case, and Pedros offer of P30,000 was in reply to the question of
the heirs as to how much he was willing to pay, which, amount the heirs accepted, said offer and
agreement to settle is not admissible in evidence against him.
294
c. Similar acts as evidence

(a)
xxx
(b)
xxx
(c)
xxx
(d)
Under the doctrine of adoptive admission, a third party's statement becomes the
admission of the party embracing or espousing it. (2009 Bar Question)
SUGGESTED ANSWER:
TRUE. The effect or consequence of the admission will bind also the party who adopted or
espoused the same, as applied in Estrada v. Desierto, 356 SCRA 108 [2001]). An adoptive admission
is a party's reaction to a statement or action by another person when it is reasonable to treat the
party's reaction as an admission of something stated or implied by the other person.
Q: D was prosecuted for homicide for allegedly beating up V to death with an iron pipe.
A.
May the prosecution introduce evidence that V had a good reputation for
peacefulness and non-violence? Why? (2%)
B.
May D introduce evidence of specific violent acts by V? Why? (3%) (2002 Bar
Question)
SUGGESTIVE ANSWER:
A.
The prosecution may introduce evidence of the good or even bad moral character of the
victim if it tends to establish in any reasonable degree the probability or improbability of the
offense charged. [Rule 130, sec. 51 a (3)]. In this case, the evidence Is not relevant
B.
Yes, D may introduce evidence of specific violent acts by V. Evidence that one did or did not
do a certain thing at one time is not admissible to prove that he did or did not do the same or a
similar thing at another time; but it may be received to prove a specific Intent or knowledge, identity,
plan, system, scheme, habit, custom or usage, and the like. (Rule 130, sec. 34).
6. Hearsay Rule
a. Meaning of hearsay
Q: What is the hearsay rule? (5%) (2007 Bar Question)
SUGGESTED ANSWER:
The hearsay rule is a rule of evidence to the effect that a witness can testify only to those
facts which he knows of his own knowledge or derived from his own perceptions, except as
otherwise provided in the Rules of Court (Rule 130, Sec. 36, Rules of Court).
a.
Define hearsay evidence? (2%)

295
b.
What are the exceptions to the hearsay rule? (2%)
c.
A overheard B call X a thief. In an action for defamation filed by X against B, is the
testimony of A offered to prove the fact of utterance i.e., that B called X a thief, admissible in
evidence? Explain. (2%)
d.
The accused was charged with robbery and homicide. The victim suffered several
stab wounds. It appears that eleven (11) hours after the crime, while the victim was being
brought to the hospital in a jeep, with his brother and a policeman as companions, the victim
was asked certain questions which he answered, pointing to the accused as his assailant. His
answers were put down in writing, but since he was a in a critical condition, his brother and
the policeman signed the statement. Is the statement admissible as a dying declaration?
Explain. (2%)
SUGGESTEDANSWER:
a.
Hearsay evidence may be defined as evidence that consists of testimony not coming from
personal knowledge (Sec. 36, Rule 130, Rules of Court). Hearsay testimony is the testimony of a
witness as to what he has heard other persons say about the facts in issue.
b.
The exceptions to the hearsay rule are: dying declaration, declaration against interest, act
or declaration about pedigree, family reputation or tradition regarding pedigree, common
reputation, part of the res gestae, entries in the course of business, entries in official records,
commercial lists and the like, learned treatises, and testimony or deposition at a former proceeding.
(Secs. 37 to 47, Rule 130, Rules of Court)
c.
Yes. The testimony of A who overheard B call X a thief is admissible in evidence as an
independently relevant statement. It is offered in evidence only to prove the tenor thereof, not to
prove the truth of the facts asserted therein. Independently relevant statements
include statements which are on the very facts in issue or those which are circumstantial evidence
thereof. The hearsay rule does not apply. (See People vs. Gaddi, 170 SCRA 649.)
;
d.
Yes. The statement is admissible as a dying declaration if the victim subsequently died and
his answers were made under the consciousness of impending death. (Sec. 37 of Rule 130) The fact
that he did not sign the statement point to the accused as his assailant, because he was in critical
condition, does not affect its admissibility as a dying declaration. A dying declaration need not be in
writing (People v. Viovicente, 286 SCRA 1.)
1.
xxx
2.
xxx
3.
xxx
4.
Hearsay evidence and opinion evidence.
5.
Questions of law and questions of fact. (2004 Bar Question)
SUGGESTED ANSWER:
296
4.
Hearsay evidence consists of testimony that is not based on personal knowledge of the
person testifying, (see Sec. 36, Rule 130), while opinion evidence is expert evidence based on the
personal knowledge skill, experience or training of the person testifying (Sec. 49, Id.) and evidence
of an ordinary witness on limited matters (Sec. 50, Id.)
5.
A question of law is when the doubt or difference arises as to what the law is on a certain
set of facts, while a question of fact is when the doubt or difference arises as to the truth or
falsehood of alleged facts. (Ramos v. Pepsi-Cola Bottling Co. of the Phil., 19 SCRA 289,
[1967D.
Q: In relation to the hearsay rule, what do the following rules of evidence have in common?
(1)
The rule on statements that are part of the res gestae;
(2)
The rule on dying declarations;
(3)
The rule on admissions against interest.
SUGGESTED ANSWER:
The rules on the evidence specified in the question asked, have in common the following:
(a)
rule;
The evidence although hearsay, are allowed by the Rules as exceptions to the hearsay
(b)
The facts involved are admissible in evidence for reasons of necessity and
trustworthiness; and
(c)
The witness is testifying on facts which are not of his own knowledge or derived from his
own perception.
Q: Romeo is sued for damages for injuries suffered by the plaintiff in a vehicular accident.
Julieta, a witness in court, testifies that Romeo told her (Julieta) that he (Romeo) heard
Antonio, a witness to the accident give an excited account of the accident immediately after
its occurrence. Is Julietas testimony admissible against Romeo over proper and timely
objection? Why? (5%) (2002 Bar Question)
SUGGESTED ANSWER:
No, Juljetas testimony is not admissible against Romeo, because while the exc ited
account of Antonio, a witness to the accident, was told to Romeo, it was only Romeo who
told Julieta about it, which makes it hearsay.
Q: Gerry is being tried for rape. The prosecutions evidence sought to establish that at about
9:00 P.M. of January 20, 1994, Gerry went to complainant Junes house to invite her to watch
the festivities going on at the town plaza. June accepted the invitation. Upon reaching the
public market, which was just a stones throw away from Junes house,' Gerry forcibly
dragged June towards the banana grove behind the market where he was able to have carnal
knowledge with June for about an hour. June did not immediately go home thereafter, and it
was only in the early morning of the following day that she narrated her ordeal to her
297
daughter Liza. Liza testified in court as to what June revealed to her.

1)
Is the testimony of Liza hearsay?
2)
Is it admissible in evidence against the objection of the defense? (1994 Bar Question)
Answer:
1)
Yes, Lizas testimony is hearsay. A witness can testify to those facts which he knows of his
personal knowledge, that is, which are derived from his own perception except as otherwise
provided in the rules. (Sec. 36, Rule 130).
2)
No. It is not admissible in evidence against the objection of the defense, because it is not
one of the exceptions to the hearsay rule. It is not part of the res gestae because only statements
made by a person while a startling occurrence is taking place or immediately prior or subsequent
thereto with respect to the circumstances thereof, may be given in evidence as part of the res
gestae. (Sec. 42, Rule 130). She narrated her ordeal to her daughter Liza only in the early morning
of the following day, as she did not immediately go home after the incident which occurred at 9:00
p.m. She could have made up the story. She should be placed on the witness stand, not Liza whose
knowledge of the event is hearsay. (People v. Lungayen, 162 SCRA 180).
Alternative Answer:
her.
Liza's testimony is admissible as to the tenor but not as to the truth of what June revealed to
b. Exceptions to the hearsay rule

Dying declaration
Q: Give the requisites of: (1998 Bar Question)
1.
xxx
2.
Dying Declaration. [2%]
SUGGESTED ANSWER:
1.
xxx
2.
The requisites for the admissibility of a dying declaration are: (a) the declaration is made by
the deceased under the consciousness of his impending death; (b) the deceased was at the time
competent as a witness; (c) the declaration concerns the cause and surrounding circumstances of
the declarants death; and (d) the declaration Is offered in a (criminal) case wherein the declarant's
death is the subject of inquiry. (People us. Santos, 270 SCRA 650.)
ALTERNATIVE ANSWER:
The declaration of a dying person, made under the consciousness of an impending death,
maybe received in any case wherein his death is the subject of inquiry, as evidence of the cause and
surrounding circumstances of such death. (See. 37 of Rule 130.)
298
Q: On March 12, 2008, Mabini was charged with Murder for fatally stabbing Emilio. To prove
the qualifying circumstance of evident premeditation, the prosecution introduced on
December 11, 2009 a text message, which Mabini's estranged wife Gregoria had sent to
Emilio on the eve of his death, reading: "Honey, pa2tayin u ni Mabini. Mtgaln nyang plano i2.
Mg ingat u bka ma tsugi k." (2010 Bar Question)
A.
xxx
B.
xxx
C.
If Mabini's objection in question B was 'overruled, can he 'Object to the presentation
of the text message on the ground that it is hearsay? (2%)
SUGGESTED ANSWER:
No, Gregoria's text message In Emilio's cellphone is not covered by the hearsay rule because
it is regarded in the rules of evidence as independently relevant statement: the text message is not
to prove the truth of the fact alleged therein but only as to the circumstance of whether or not
premeditation exists.
D. Suppose that shortly before he expired, Emilio was able to send a text message to his wife
Graciana reading "Nasaksak ako. Dna me makahinga. SiMabiniang may gawa ni2." Is this text
message admissible as a dying declaration? Explain. (3%)
SUGGESTED ANSWER:
Yes, the text message is admissible as a dying declaration since the same came from the
victim who "Shortly" expired and it is in respect of the cause and circumstance of his death. The
decisive factor that the message was made and sent under consciousness of an impending death, is
evidently attendant from the victim's Statement: D na me makahinga" and the fact that he died
shortly after he sent the text message. However, cellphone messages are regarded as electronic
evidence, and in a recent case (Ang v. Court of Appeals et al., GR No. 182835, April 20, 2010), the
Supreme Court ruled that the Rules on Electronic Evidence applies only to civil actions, quasijudicial proceedings and administrative proceeding, not to criminal actions.
SUGGESTED ANSWER:
No, the text message is not admissible as a dying declaration because it lacks indication that
the victim was under consciousness of an impending death. The statement "D na me makahinga" is
still equivocal In the Text message sent that does not imply consciousness of forth-coming death.
Q: Blinded by extreme jealousy, Alberto shot his wife, Betty, in the presence of his sister,
Carla. Carla brought Betty to the hospital. Outside the operating room, Carla told Domingo, a
male nurse, that it was Alberto w'ho shot Betty. Betty died while undergoing emergency
surgery. At the trial of the parricide charges filed against Alberto, the prosecutor sought to
present Domingo as witness, to testify on what Carla told him. The defense counsel objected
on the ground that Domingos testimony is inadmissible for being hearsay. Rule on the
objection with reasons. (3%) (2009 Bar Question)
SUGGESTED ANSWER:
Objection overruled. The disclosure received by Domingo from Carla may be regarded as
299
independently relevant statement which is not covered by the hearsay rule; hence admissible. The
statement may be received not as evidence of the truth of what was stated but only as to the tenor
thereof and the occurence when it was said, independently of whether it was true or false. (People
v. Cloud, 333 Phil. 306[1996]; People v. Malibiran, etal., G.R. No. 178301, April 24, 2009)
ALTERNATIVE ANSWER:
Objection sustained. The disclosure made by Carla has no other probative value except to
identify who shot Betty. Its tenor is irrelevant to the incident, and the same was made not to a
police investigator of the occurrence but to a nurse whose concern is only to attend to the patient.
Hence, the disclosure does not qualify as independently relevant statement and therefore, hearsay.
The nurse is competent to testify only on the condition of Betty when rushed to the hospital but not
as to who caused the injury. The prosecution should call on Carla as the best witness to the incident.
(1)
xxx
(2)
The rule on dying declarations;
(3)
xxx
SUGGESTED ANSWER:
(a)
xxx
(b)
The facts involved are admissible in evidence for reasons of necessity and trustworthiness;
and
(c)
xxx
Q: While sleeping under a tree, Kintanar was stabbed several times by a man,
sustaining multiple stab wounds on his chest with blood spurting therefrom. Bathed
in his own blood, Kintanar rushed to his house where he was met by his wife.
Kintanar informed his wife that it was Gonzales who stabbed him. On the way to the
hospital, Kintanar kept on saying that it was Gonzales who stabbed him. He died
while undergoing surgery at the hospital.
Convicted for the killing of Kintanar, Gonzales questioned the admission in evidence
of the ante-mortem statement of Kintanar to his wife. He argued that from the
abovecited facts, there is no indication that the aforesa id statement was made by
the victim under consciousness of an impending death.
Can the subject statement be considered a dying declaration? Why? (1993 Bar
Question)
Answer:
Yes, the statement that it was Gonzales who stabbed him can be considered a dying
declaration because it concerned the crime and surrounding circumstances of decla rant's
death; it was made with consciousness of impending death as shown by the fact that he
300
died while undergoing surgery at the hospital; the declarant was competent as a witness;
and the declaration was offered in a criminal case in which declarant was the victim.
Alternative Answer:
Even if the statement cannot be considered a dying declaration, it was admissible
as part of the res gestae.
Q: Alejo was stabbed in the abdomen. He immediately called for help and a policeman
promptly approached him. He told the policeman that he felt he would die from the serious
wound inflicted on him by Danilo who has a grudge against him. He was brought to a hospital
for treatment where, on the same day he was shot and killed by someone whose identity
could not be established by an eye-witness. Eventually. Danilo was charged in court for the
death of Alejo. The prosecution had to build its case on circumstantial evidence. At the
ensuing trial, the policeman was presented to testify on the declaration made to him by
Alejo. The defense objected. Meeting the objection, the prosecution argued for the
admissiblity of the evidence as a dying declaration (ante mortem statement) or as part of the
res gestae, either of which, when deemed competent evidence as an exception to the hearsay
rule, would demonstrably be relevant to the ultimate fact in issue, the guilt of Danilo for the
death of Alejo. The defense countered by arguing that no facts relating to the stabbing can be
relevant to the shooting.
Is the contention of the prosecution with respect to relevancy and competency of evidence
correct? Discuss fully. (1992 Bar Question)
Suggested Answer:
No. the contention of the prosecution is not correct. The statement of Alejo that it was
Danilo who stabbed him is not admissible as a dying declaration, because it did not concern the
cause and surrounding circumstances of his death. Alejo did not die from the serious wound
inflicted on him. The cause of his death was the shot fired by an unknown person. Neither is the
statement admissible as part of the res gestae, because Danilo was charged with the death of Alejo
and the cause of the death was not the stabbing by Danilo. (Secs. 37 and 42 of Rule 130)
Q: One evening, at 9:00 oclock, just as he reached the gate of his house in Apas, Cebu City,
and as soon as he alighted from his car to open the gate. Carlos was shot by Tito, who had
been waiting behind a coconut tree nearby, with a .38 caliber revolver. Carlos was hit at the
sternum of the second rib. Hearing the .shot, Marilyn, Carlos* wife ran out toward the gate
and found Carlos lying on the ground, with blood splattered on his chest. With her son, Y. she
brought Carlos to the Cebu Doctors Hospital. In the car, although he was in a semi-conscious
state. Carlos told Marilyn that it was Tito who shot him, Carlos was brought to the emergency
room. However, two (2) hours later, he expired. Tito was then charged with murder before
the RTC of Cebu. Marilyn was presented as witness for the prosecution, but her testimony
regarding the above statement of Carlos was objected to under the hearsay rule. The court
overruled the objection on the ground that the statement may be considered as a dying
declaration. (1991 Bar Question)
(a)
Is the ruling correct?
Answer:
301
(a)
Yes, because all the requisites to admissibility of a dying declaration are present. The fact
that Carlos died two hours after he was shot shows that his statement to Marilyn while being
brought to the hospital, that it was Tito who shot him, was made under consciousness of impending
death.
What are the requisites to admissibility of a dying declaration?
(b)
Answer:
(b)
1) It must concern the cause and the surrounding circumstances of declarants death;
2) It was made under consciousness of impending death;
3) The declarant was competent as a witness;
4) The declaration is offered in a civil or criminal case in which the declarant was a victim.
(Sec. 37 of Rule 130; People v. Sagario, 14 SCRA 468)
Q: Two (2) hours after Lt. Yap of the 2nd Air Division, PAF, at the Mactan Air Base in
Lapulapu City, was shot with a .45 caliber pistol, his Division Commander, Brig. Gen. A,
visited him at the Cebu Doctors Hospital in Cebu City where he was immediately brought for
treatment of the gunshot wound. Lt. Yap told A that it was Jose Comen who shot him.
Forthwith, A, who is a law graduate, took the initiative of taking down in long hand the
statement of Lt. Yap. The latter narrated the events surrounding the Incident and
categorically stated that it was Jose Comen who shot him. Lt. Yap signed the statement in the
presence of A and the attending nurse. Ten (10) days later, Lt. Yap died as a consequence of
the gunshot wound. An information for murder was filed against Jose Comen.
At the trial, the above statement of Lt. Yap marked as Exh. T, was presented and identified by
A who did not, however, testify that Lt. Yap read it, or that it was read to him before he (Yap)
signed it. A nevertheless, testified that, as above stated, Lt. Yap told him that it was Jose
Comen who shot him. The defense objected to the testimony of A and to the admission of Exh.
X on the ground that they are hearsay. The prosecution contended that both are exceptions
to the hearsay rule as they are part of res gestae. (1991 Bar Question)
Answer:
(a)
No, because the statement of Lt. Yap to A, that it was Jose Comen who shot him, was
given two hours after he was shot. Hence, it could not be considered as part of the res gestae,
because the' rule refers to statements made by a person while a startling occurrence is taking into
place or immediately prior or subsequent thereto. (Sec. 36 of Rule 130)
(b)
If the statement cannot be admitted as part of the res gestae, may it be considered as
a dying declaration?
Answer:
(b)
Neither could it be considered as a dying declaration because it was not made under
consciousness of impending death, since he died ten days later.
Another Answer:
302
It could be considered as a dying declaration if the gravity of the wounds inflicted would
indicate that the statement was made under consciousness of impending death.
(c)
If the testimony of A as to the revelation of Lt. Yap is not admissible for being hearsay,
may it be admitted as an independently relevant statement?
Answer:
(c)
It may not be considered as an independently relevant statement, because the same is being
presented to establish the truth of the fact asserted therein and not merely the tenor thereof.
(People vs. Gaddi, 170 SCRA 649)
Declaration against interest
(1)
xxx
(2)
xxx
(3)
The rule on admissions against interest.
SUGGESTED ANSWER:
(a)
xxx
(b)
xxx
(c)
The witness is testifying on facts which are not of his own knowledge or derived from his
own perception.
Family reputation or tradition regarding pedigree

Q: Linda and spouses Amulfo and Regina Ceres were coowners of a parcel of land. Linda died
intestate and without any issue. Ten (10) persons headed by Jocelyn, claiming to be the
collateral relatives of the deceased Linda, filed an action for partition with the Regional Trial
Court praying for the segregation of Lindas 1/2 share, submitting in support of their
petition the baptismal certificates of seven of the petitioners, a family bible belonging to
Linda in which the names of the petitioners have been entered, a photocopy of the birth
certificate of Jocelyn, and a certification of the local civil registrar that its office had been
completely razed by fire. The spouses Ceres refused to partition on the following grounds: 1)
the baptismal certificates of the parish priest are evidence only of the administration of the
sacrament of baptism and they do not prove filiation of the alleged collateral relatives of the
deceased; 2) entry in the family bible is hearsay; 3) the certification of the registrar on nonavailability of the records of birth does not prove filiation; 4) in partition cases where
filiation to the deceased is in dispute, prior and separate judicial declaration of heirship in a
settlement of estate proceedings is necessary; and 5) there is need for publication as real
property is involved. As counsel for Jocelyn and her co-petitioners, argue against the
objections of the spouses Ceres so as to convince the court to allow the partition. Discuss
each of the five (5) arguments briefly but completely. (10%) (2000 Bar Question)
303
SUGGESTED ANSWER:
1)
The baptismal certificate can show filiation or prove pedigree. It is one of the other means
allowed under the Rules of Court and special laws to show pedigree. (Trinidad v. Court of Appeals,
289 SCRA 188 11998]; Heirs of Ignacio Conti v. Court of Appeals, 300 SCRA 34511998)).
2)
Entries in the family bible may be received as evidence of pedigree. (Sec. 40, Rule 130,
Rules of Court).
3)
The certification by the civil registrar of the non-availability of records is needed to justify
the presentation of secondary evidence, which is the photocopy of the birth certificate of Jocelyn.
(Heirs of Ignacio Conti v. Court of Appeals, supra.)
4)
Declaration of heirship in a settlement proceeding is not necessary. It can be made in the
ordinary action for partition wherein the heirs are exercising the right pertaining to the decedent,
their predecessor-in-interest, to ask for partition as co-owners (Id.).
5)
Even if real property is involved, no publication is necessary, because what is sought is the
mere segregation of Lindas share in the property. (Sec. 1 of Rule 69; Id.)
Part of the res gestae
(1)
The rule on statements that are part of the res gestae;
(2)
xxx
(3)
xxx
SUGGESTED ANSWER:
(a)
The evidence although hearsay, are allowed by the Rules as exceptions to the hearsay rule;
(b)
xxx
(c)
xxx
Q: Dencio barged into the house of Marcela, tied her to a chair and robbed her of assorted
pieces of jewelry and money. Dencio then brought Candida, Marcelas maid, to a bedroom
where he raped her. Marcela could hear Candida crying and pleading: Huwag! Maawa ka sa
akin!" After raping Candida, Dencio fled from the house with the loot. Candida then untied
Marcela and rushed to the police station about a kilometer away and told Police Officer
Roberto Maawa that Dencio had barged into the house of Marcela, tied the latter to a chair
and robbed her of her jewelry and money. Candida also related to the police officer that
despite her pleas, Dencio had raped her. The policeman noticed that Candida was hysterical
and on the verge of collapse. Dencio was charged with robbery with rape. During the trial,
Candida can no longer be located. (2005 Bar Question)
a)
If the prosecution presents Police Officer Roberto Maawa to testify on what Candida
had told him, would such' testimony of the policeman be hearsay? Explain.
SUGGESTED ANSWER:
304
No. The testimony of the policeman is not hearsay. It is part of the res gestae. It is also an
independently relevant statement. The police officer testified of his own personal knowledge, i.e.,
that complainant told him that despite her pleas, Dencio had raped her. He did not testify to the
truth of his statement. [People v. Gaddi, 170 SCRA 649 [19891).
ALTERNATIVE ANSWER
Strictly speaking the testimony is hearsay, but it is an exception to the hearsay rule.
b)
If the police officer will testify that he noticed Candida to be hysterical and on the
verge of collapse, would such testimony be considered as opinion, hence, inadmissible?
Explain. (8%)
SUGGESTED ANSWER:
b)
No, It cannot be considered as opinion, because he was testifying on what he actually
observed. A witness may testify on his impressions of the emotion, behavior, condition or
appearance of a person. (Rules of Court, Rule 130,Sec. 50, last par.).
(a)
When Tomas was stabbed on the chest during a street brawl, he instinctively shouted
for help. Emil who was nearby heard the shout and rushed to Tomas' side who when asked
by Emil what happened, stated that Kulas stabbed him.
Tomas died on account of the stab wound.
1)
Could Emils testimony be received to identify Kulas? Explain.
Answer:
(a)
Yes, Emils testimony may be received to identify Kulas because the statement of Tomas
who had just been stabbed on the chest that Kulas stabbed him is admissible as part of the res
gestae. (Sec. 36 of Rule 130)
(b)
The day before the stabbing victim died, he identified positively to the Police the
person who stabbed him. When he was asked by the Police if he was going to die because of
his wounds, he answered that he did not know.
1)
Is the identification by the deceased admissible as an ante-mortem statement and
an exception to the hearsay rule? Explain.
2)
State five other exceptions to the hearsay rule.
Answer:
(b) 1) No, because his answer to the question of the police, if he was going to die, that he did not
know shows that his identification of the person who stabbed him was not made under
consciousness of impending death. Hence, the identification is not admissible as a dying declaration
or ante-mortem statement. (Sec. 31 of Rule 130; People vs. Dominguez, 36 SCRA 59)
Alternative Answer:
305
(b)
1) Yes, because in the case of People vs. Sarbia (127 SCRA 100) where the answer of the
victim to the question of the police, if he was going to die, was I do not know Sir because my
wounds are too painful and in fact he died two days later, the statement of the victim identifying
the person who stabbed him was admitted as a dying declaration. This ruling may apply to this case
where the victim died the next day.
Note: The answer will depend on the circumstances. It will have to be decided on a case to case
basis. If the wounds are serious, it can be considered ante-mortem.
2)
Five other exceptions to the hearsay rule are:

a)
Declaration against interest
b)
Act or declaration about pedigree
c)
Family reputation or tradition regarding pedigree
d)
Common reputation
e)
Entries in the course of business
f)
Entries in official records
g)
Commercial lists and the like
h)
Learned treatises
i)
Testimony at a former trial (Secs. 32-41 of Rule 130)
7. Opinion rule
a. Opinion of expert witness
b. Opinion of ordinary witness
Q: At Nolans trial for possession and use of the prohibited drug known as shabu," his
girlfriend, Kim, testified that on a particular day, she would see Nolan very prim and proper,
alert and sharp, but that three days after, he would appear haggard, tired and overly nervous
at the slightest sound he would hear. Nolan objects to the admissibility of Kim's testimony on
the ground that Kim merely stated her opinion without having been first qualified as expert
witness.
Should you, as judge, exclude the testimony of Kim? (1994 Bar Question)
Answer:
No. The testimony of Kim should not be excluded. Even though Kim is not an expert witness,
Kim may testify on her Impressions of the emotion, behavior, condition or appearance of a person.
(Sec. 50. last par. Rule 130).
8. Character evidence
a. Criminal cases
Q: In a prosecution for murder, the prosecutor asks accused Darwin if he had been
previously arrested for violation of the Anti-Graft and Corrupt Practices Act. As defense
306
counsel, you object. The trial court asks you on what ground / s. Respond. (3%) (2010 Bar
Question)
SUGGESTED ANSWER:
The objection is on the ground that the fact sought to be elicited by the prosecution is
irrelevant and immaterial to the offense under prosecution and trial. Moreover, the Rules do not
allow the prosecution to adduce evidence of bad moral character of the accused pertinent to the
offense charged, except on rebuttal and only if it involves a prior conviction by final judgment (Rule
130, Sec. 51, and Rules of Court).
Q: D was prosecuted for homicide for allegedly beating up V to death with an iron pipe.
A.
May the prosecution introduce evidence that V had a good reputation for
peacefulness and non-violence? Why? (2%)
B.
May D introduce evidence of specific violent acts by V? Why? (3%) (2002 Bar
Question)
SUGGESTIVE ANSWER:
A.
The prosecution may introduce evidence of the good or even bad moral character of the
victim if it tends to establish in any reasonable degree the probability or improbability of the
offense charged. [Rule 130, sec. 51 a (3)]. In this case, the evidence Is not relevant
B.
Yes, D may introduce evidence of specific violent acts by V. Evidence that one did or did not
do a certain thing at one time is not admissible to prove that he did or did not do the same or a
similar thing at another time; but it may be received to prove a specific Intent or knowledge, identity,
plan, system, scheme, habit, custom or usage, and the like. (Rule 130, sec. 34).
9. Rule on Examination of a Child Witness (A.M. No. 004-07-SC)
a. Live-link TV testimony of a child witness
Q: When may the trial court order that the testimony of a child be taken by live-link
television? Explain. (10%) (2005 Bar Question)
SUGGESTED ANSWER:
The testimony of a child may be taken by live- link television if there is a substantial
likelihood that the child would suffer trauma from testifying in the presence of the accused, his
counsel or the prosecutor as the case maybe. The trauma must be of a kind which would impair the
completeness or truthfulness of the testimony of the child. (Sec. Sec. 25 [f], Rule on Examination of a
Child Witness).
II
F. Offer and objection
1. Offer of evidence
Q: What is the difference between an offer of testimonial evidence and an offer of
documentary evidence? (1994 Bar Question)
Answer:
307
An offer of testimonial evidence is made at the time the witness is called to testify, while an
offer of documentary evidence is made after the, presentation of a party's testimonial evidence.
(Sec. 35. Rule 132.)
Q: During the pre-trial of a civil case, the parties their respective documentary evidence.
Among the documents marked by the plaintiff was the Deed of Absolute Sale of the property
in litigation (marked as Exh. C").
In the course of the trial on the merits, Exh. C" was Identified by the plaintiff, who was crossexamined thereon by the defendants counsel; furthermore, the contents of Exh. C" were
read into the records by the plaintiff.
However, Exh. C" was not among those formally offered in evidence by the plaintiff.
May the trial court consider Exh. C" in the determination of the action? Why? (1993 Bar
Question)
Answer:
Yes, because not only was the Deed of Absolute Sale marked by the plaintiff as Exh. C"
during the pre-trial, it was identified by the plaintiff in the course of the trial and the plaintiff was
cross-examined thereon by the defendants counsel. Furthermore, the contents of Exh. C" were
read into the records by the plaintiff. Hence, the trial court could properly reconsider Exh. C In the
determination of the action even though it was not formally offered in evidence. This is an
exception to the rule that the court shall consider no evidence which has not been formally offered
(Sec. 35 of Rule 132). (See People vs. Napata, 179 SCRA 403; Tabuena vs. Court of Appeals, 196
SCRA 650.)
Q: Distinguish formal offer of evidence from offer of proof. (1991 Bar Question)
Answer:
A formal offer of the testimony of a witness is made at the time the witness is called to
testify, while a formal offer of documentary and object evidence is made after the presentation of a
partys testimonial evidence. (Sec. 35 of Rule 132)
On the other hand, if documents or things offered in evidence are excluded by the court, the
offer of proof is made by having the same attached to or made part of the record; and if the
evidence excluded is oral, the offer of proof is made by stating for the record the name and other
personal circumstances of the witness and the substance of the proposed testimony. (Sec. 40 of
Rule 132)
2. When to make an offer
Q: A trial court cannot take into consideration in deciding a case an evidence that has not
been 'formally offered". When are the following pieces of evidence formally offered? (1997
Bar Question)
(a)
Testimonial evidence
(b)
Documentary evidence
(c)
Object evidence
308
Answer:
(a)
Testimonial evidence is formally offered at the time the witness is called to testify. (Rule
132. Sec. 35. first paragraph)
(b)
Documentary evidence is formally offered after the presentation of the testimonial
evidence. (Rule 132, Sec. 35, second par.)
(c)
The same is true with object evidence. It is also offered after the presentation of the
testimonial evidence.
3. Objection
Q: What are the two kinds of objections? Explain each briefly. Given an example of
each.(1997 Bar Question)
Answer:
Two kinds of objections are: (1) the evidence being presented is not relevant to the issue;
and (2) the evidence is incompetent or excluded by the law or the rules. (Sec. 3, Rule 138). An
example of the first is when the prosecution offers as evidence the alleged offer of an insurance
company to pay for the damages suffered by the victim in a homicide case. (See question No. 14).
Examples of the second are evidence obtained in violation of the Constitutional prohibition
against unreasonable searches and seizures and confessions and admissions in violation of the
rights of a person under custodial investigation.
1)
Specific objections : Example: parol evidence and best evidence rule

General Objections: Example: continuing objections (Sec. 37 of Rule 132).
2)
The two kinds of objections are: (1) objection to a question propounded in the course of the
oral examination of the witness and (2) objection to an offer of evidence in writing. Objection to a
question propounded in the course of the oral examination of a witness shall be made as soon as
the grounds therefor shall become reasonably apparent, otherwise, it is waived. An offer of
objection in writing shall be made within three (3) days after notice of the offer, unless a different
period is allowed by the court. In both instances the grounds for objection must be specified. An
example of the first is when the witness is being cross-examined and the cross examination is on a
matter not relevant. An example of the second is that the evidence offered is not the best evidence.
Q: What is the difference between a broadside" objection and a specific objection to the
admission of documentary evidence? (1994 Bar Question)
Answer:
A broadside" objection to the admission of documentary evidence is to be distinguished
from a specific objection in that a broadside" objection is a general objection such as incompetent,
irrelevant and immaterial", while a specific objection is limited to a particular ground.
309
Alternative Answer:
A broadside" objection is one which does not specify any ground.
A.
Delia sued Victor for personal injuries which she allegedly sustained when she was
struck by a car driven by Victor. May the court receive in evidence, over proper and timely
objection by Delia, a certified true copy of a judgment of acquittal in a criminal prosecution
charging Victor with hit-and-run driving in connection with Delias injuries? Why? (3%)
B.
Is this question on direct examination objectionable: What happened on July 12,
1999? Why? (2%)
SUGGESTED ANSWER:
A.
If the judgment of acquittal in the criminal case finds that the act or omission from
which the civil liability may arise does not exist, the court may receive it in evidence over
the objection by Delia. [Rule 111, sec. 2, last paragraph].
ALTERNATIVE ANSWER:
A. If the judgment of acquittal is bases on reasonable doubt, the court may receive it in evidence
because in such case, the civil action for damages which may be instituted requires only a
preponderance of the evidence. (Art. 29, Civil Code)
SUGGESTED ANSWER:
B.
The question is objectionable because it has no basis, unless before the question is asked
the proper basis is laid.
4. Tender of excluded evidence
Q: G files a complaint for recovery of possession and damages against F. In the course of the
trial, G marked his evidence but his counsel failed to file a formal offer of evidence. F then
presented in evidence tax declarations in the name of his father to establish that his father is
a co-owner of the property. The court ruled in favor of F, saying that G failed to prove sole
ownership of the property in the face of Fs evidence. Was the court correct? Explain briefly.
SUGGESTED ANSWER:
No, the trial court is not correct in ruling in favor of F. Tax Declarations are not by
themselves evidence of ownership; hence, they are not sufficient evidence to warrant a judgment
that Fs father is a co-owner of the property.
Plaintiffs failure to make a formal offer of his evidence may mean a failure to prove the
allegations in his complaint. However, it does not necessarily result in a judgment awarding coownership to the defendant.
While the court may not consider evidence which is not offered, the failure to make a formal
310
offer of evidence is a technical lapse in procedure that may not be allowed to defeat substantive
justice. In the interest of justice, the court can require G to offer his evidence and specify the
purpose thereof.
Q: Aside from the testimonies of three witnesses positively identifying accused X as having
stabbed to death Y, the prosecution seeks to present another witness, A which it believes as
material and competent to prove its case. X's counsel object to A's proposed testimony as
being irrelevant. The court sustained the objection.
If you were the prosecutor, what course of act ion would you pursue to the end that the
proposed testimony of A would form part of the record for purposes of review? Explain.
(1996 Bar Question)
Answer:
I would make a tender of excluded evidence by stating for the record the name and other
personal circumstances of the witness and the substance of the proposed testimony. (Sec. 40 of
Rule 132)
VII. Revised Rules on Summary Procedure

A. Cases covered by the rule
a)
In what civil cases is the Summary Procedure before Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts applicable?
b)
In what criminal cases is the Summary Procedure before the Metropolitan Courts,
Municipal Courts, and Municipal Circuit Trial Courts applicable?
Answer:
a)
Summary Procedure is applicable in the following civil cases:
1)
Cases of forcible entry and unlawful detainer, accept where the question of ownership is
involved, or where the damages or unpaid rentals sought to be recovered by the plaintiff exceed
twenty thousand pesos (P20,000.00) at the time of the filing of the complaint;
2)
All other civil cases, except probate proceedings, falling within the jurisdiction of the
abovementioned courts, where the total amount of the plaintiff s claim does not exceed ten
thousand pesos (P10,000.00), exclusive if interest and costs. (Sec. 1-A)
b)
It is applicable in the following criminal cases:

1)
Violations of traffic laws, rules and regulations;
2)
Violations of the rental law;
3)
Violations of municipal or city ordinances;
4)
All other criminal cases where the penalty prescribed by law for the offense
charged does not exceed six months of imprisonment, or a fine of one thousand pesos
(PI,000.00), or both, irrespective of other imposable penalties, accessory or otherwise, or of
the civil liability arising therefrom: Provided, however, that in offenses involving damage to
311
property through criminal negligence, this Rule shall govern where the imposable fine does
not exceed ten thousand pesos (P10,600 00). (Sec. 1-B)
Through criminal negligence, this Rule shall govern where the imposable fine does not
exceed ten thousand pesos (P10,600 00). (Sec. 1-B)
B. Effect of failure to answer
Q: Distinguish between the effects of the failure to file an answer in a civil case governed by
the Summary Rules and in a civil case governed by the regular provisions of the Rules of
Court. (1989 Bar Question)
Answer:
Under Summary Procedure Rules, upon the failure to file an answer in. a civil case, the
court, motu propio or upon motion of the plaintiff, shall render judgment as may be warranted by
the facts alleged in the complaint and limited to what is prayed for therein except as to the amount
of damages which the court may reduce in its discretion. (Sec. 5)
Under the regular procedure, upon the failure to file an answer, the court shall, upon motion
of the plaintiff and proof of .such failure, declare the defendant in default. Thereupon, the court
shall proceed to receive the plaintiffs evidence and render judgment granting him such relief as the
complaint and the facts proven may warrant. Such judgment shall not exceed the amount or be
different in kind from that prayed for. (Secs. 1 and 5 of Rule 18).
C. Preliminary conference and appearances of parties
Q: Charged with the offense of slight physical injuries under an information duly filed with
the MeTC in Manila which in the meantime had duly issued an order declaring that the case
shall be governed by the Revised Rule on Summary Procedure, the accused filed with said
court a motion to quash on the sole ground that the officer who filed the information had no
authority to do so. The MeTC denied the motion on the ground that it is a prohibited motion
under the said Rule.
The accused thereupon filed with the RTC in Manila a petition for certiorari in sum assailing
and seeking the nullification of the MeTCs denial of his motion to quash. The RTC in due
time issued an order denying due course to the certiorari petition on the ground that it is not
allowed by the said Rule. The accused forthwith filed with said RTC a motion for
reconsideration of its said order. The RTC in time denied said motion for reconsideration on
the ground that the same is also a prohibited motion under the said Rule.
Were the RTCs orders denying due course to the petition as well as denying the motion for
reconsideration correct? Reason. (5%)(2004 Bar Question)
SUGGESTED ANSWER:
The RTCs orders denying due course to the petition for certiorari as well as denying the
motion for reconsideration are both not correct. The petition for certiorari is a prohibited pleading
under Section 19(g) of the Revised Rule on Summary Procedure and the motion for
reconsideration, while it is not prohibited motion (Lucas v. Fabros, AM No. MTJ-99-1226, January
31, 2000, citing Joven v. Court of Appeals, 212 SCRA 700, 707-708 (1992), should be denied because
the petition for certiorari is a prohibited pleading.
312
Q: Edison was charged with the crime of less serious physical injuries in the Metropolitan
Trial Court of Manila. Under the Revised Penal Code, the penalty prescribed for this offense
is arresto mayor, Aside from the recital of the facts constituting the offense, the information
alleged that the offended party suffered actual damages in the amount of P25,000. Instead of
submitting his counter-affidavits as required by the court, Edison filed a motion to quash
contending that the court had no jurisdiction over the case since the amount claimed as
damages exceeds the jurisdic-tional limit of trial courts in civil cases. If you were the judge
trying the case, what would you do with the-motion filed? How would you dispose of the
question of jurisdiction raised in the said motion? Explain. (1989 Bar Question)
Answer:
I would deny the motion to quash inasmuch as such a motion is not allowed in Summary
Procedure. The criminal case where the penalty prescribed by law for the offense charged does not
exceed six months of imprisonment is governed by Summary procedure.
On the question of jurisdiction, Summary Procedure applies irrespective of the civil liability
arising from the offense. Hence the fact that the civil liability exceeds P2Q,000 does not deprive the
Metropolitan Trial Court of jurisdiction. (Sec. B-4)
Q: An information for slight physical injuries was filed against Diego in the Municipal Trial
Court of Cainta, after which the judge directed him to appear and submit counter- affidavits
and those of his witnesses on September 12, 1989. Diego failed to appear on the said date.
Thereafter, the judge rendered judgment convicting Diego of the offense charged based on
the affidavits submitted by the complainant. Diego contends that this judgment is a nullity.
Answer:
Diegos contention is correct. Under Summary Procedure rules, the failure of Diego to
appear and submit counter-affidavits on the date specified may be a ground for the judge to issue a
warrant for his arrest upon a finding of probable cause. However, the judge may not render a judgment of conviction of the offense charged based on the affidavits submitted by the complainant. He
should set the case for arraignment and trial if Diego pleads not guilty. Only after trial may the
judge render a judgment of conviction. (Secs. 10 and 11)
VIII. Katarungang Pambarangay Law (P.D. No. 1508; R.A. 7610, as

amended)
A. Cases covered
a. What is the object of the Katarungang Pambarangay Law? (2%)
Answer:
The object of the Katarungang Pambarangay Law is to effect an amicable settlement of
disputes among family and barangay members at the barangay level without judicial recourse and
consequently help relieve the courts of docket congestion. (Preamble of P.D. No. 1508, the former
and the first Katarungang Pambarangay Law.)
313
Q: Alice, a resident of Valenzuela. Metro Manila, filed with the Metropolitan Trial Court
thereat a complaint for damages against her next-door neighbor Rosa for P100,000.00 with
prayer for preliminary attachment. She alleged that Rosa intrigued against her honor by
spreading unsavory rumors about her among their co-workers at the Phoenix Knitwear
factory located at Valenzuela.
After pre-trial the court motu proprio referred the case for amicable settlement between the
parties to the Lupon Tagapayapa of Barangay 2. Zone 3, of Valenzuela where the factory is
located. Rosa questioned the order contending that the court had no authority to do so as
both parties had already gone through pre-trial where amicable settlement was foreclosed
and the parties were already going to trial.
1.
Comment-on Rosas contention. Explain.
2.
Rosa also opposed the referral to the Lupon Tagapayapa of Barangay 2, Zone 3,
claiming that the venue was wrong as the proper Lupon was that of Barangay 1, Zone 5,
where she and Alice reside. Is Rosas opposition valid? Explain.
3.
Suppose that the Lupon of Barangay 2. Zone 3, is successful in forging an amicable
settlement between Alice and Rosa, is the compromise immediately executory?
Ex plain.
4.
How, when and by whom shall the compromise agreement be enforced? Explain.
Answer:
1.
Rosa is not correct. The Local Government Code provides that in non-criminal cases not
falling within the authority of the Lupon, the court may at any time before trial refer the case to the
Lupon concerned for amicable settlement. (Sec. 408)
2.
No, because the law also provides that the venue of disputes arising at the workplace of the
contending parties shall be brought in the barangay where such workplace is located. (Sec. 409[d])
3.
No, because any compromise settlement shall be submitted to the court which referred the
case for approval. (Sec. 416)
4.
Upon approval thereof, it shall have the force and effect of a Judgment of the court and shall
be enforced in accordance with Section 6, Rule 39.
Q: For failure of the tenant, X, to pay rentals, A, the court-appointed administrator of the
estate of Henry Datu, decides to file an action against the former for the recovery of
possession of the leased premises located In Davao City and for the payment of the accrued
rentals In the total amount of P25,000.00. (1991 Bar Question)
a)
Is prior referral to the Lupon under P.D. No. 1508 necessary?
Answer:
a)
No, because the law applies only to disputes between natural person, and does not apply to
juridical person such as the estate of a deceased. [Vda. de Borromeo v. Pogoy, 126 SCRA 217)
b)
What is the court of proper jurisdiction and venue of the Intended action?
Answer:
b)
The Court of proper jurisdiction and venue is the Municipal Trial Court of Davao City, since
this is an action of illegal detainer and the leased premises are located in Dayao City.
314
Another Answer:
If the action filed is for recovery of possession or accion publiciana, the Regional Trial Court
of Davao City would have jurisdiction and the venue would also be in Davao City.
c)
Supposing that referral is necessary, but the complaint is filed without such referral,
may it be dismissed on the ground of lack of jurisdiction?
Answer:
c)
No, because lack of referral would merely render the action premature for failure to comply
with a condition precedent.
d)
If the case is filed with the Municipal Trial Court, in Cities (MTCC), is it covered by the
Rule on Summary Procedure?
Answer:
d)
No, it is not covered by the Rule on Summary Procedure in any of the lower courts, because
the unpaid rentals exceed P20.000.00 (Sec. 1-A-l of Rule on Summary Procedure)
e)
Supposing that A filed the complaint in the MTCC, and X filed an Answer wherein he
interposed a counterclaim for moral damages in the amount of P50.000 alleging that the
complaint is unfounded and malicious, would the MTCC have jurisdiction over the
counterclaim? If X did not set up the counterclaim, can he file a separate action to recover
the damages? Can A file a counterclaim to the counterclaim?
Answer:
e)
No, because the counterclaim exceeds the jurisdictional amount of P20.000.00. Since the
claim for damages is not within the jurisdiction of the MTCC, it is not a compulsory counterclaim
and X can file a separate action in the RTC to recover the damages. [Reyes v. CA, 38 SCRA 130)
Another Answer:
The MTCC would have jurisdiction over the counterclaim if the excess of the amount thereof
over P20.000.00 is waived by X. (Agustin v. Bocalan, 135 SCRA 340)
B. Subject matter for amicable settlement
Q: An amicable settlement was signed before a Lupon Tagapamayapa on January 3, 2001. On
July 6, 2001, the prevailing party asked the Lupon to execute the amicable settlement
because of the non-compliance by the other party of the terms of the agreement. The Lupon
concerned refused to execute the settlement/agreement.
a)
Is the Lupon correct in refusing to execute the settlement/agreement? (3%)
b)
What should be the course of action of the prevailing party in such a case? (2%)
SUGGESTED ANSWER:
315
a)
Yes, the Lupon is correct in refusing to execute the settlement/agreement because the
execution sought is already beyond the period of six months from the date of the settlement within
which the Lupon is authorized to execute. (Sec. 417, Local Government Code of 1991)
b)
After the six-month period, the prevailing party should move to execute the
settlement/agreement in the appropriate city or municipal trial court. (Id.)
b.
xxx
c. What is the difference, if any, between the conciliation proceedings under the
Katarungang Pambarangay Law and the negotiations for an amicable settlement
during the pre-trial conference under the Rules of Court? (2%)
SUGGESTED ANSWER:
a.
xxx
b.
The difference between the conciliation proceedings under the Katarungang Pambarangay
Law and the negotiations for an amicable settlement during the pre-trial conference under the
Rules of Court is that in the former, lawyers are prohibited from appearing for the parties. Parties
must appear in person only except minors or incompetents who may be assisted by their next of kin
who are not lawyers. (Formerly Sec. 9, P.D. No. 1508; Sec. 415, Local Government Code of 1991, R.A.
7160.) No such prohibition exists in the pre-trial negotiations under the Rules of Court.
316

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COVERAGE

B. Substantive law vis--vis remedial law

C. Nature of Philippine courts

1. Principle of judicial hierarchy

2. Doctrine of non-interference or doctrine of judicial stability

1. How jurisdiction over the plaintiff is acquired

2. How jurisdiction over the defendant is acquired

B. Over the subject matter

1. Error of jurisdiction as distinguished from error of judgment

2. How jurisdiction is conferred and determined

3. Objections to jurisdiction over the subject matter

4. Effect of estoppel on objections to jurisdiction

C. Over the issues

D. Over the res or property in litigation

4. Regional Trial Courts

6. Metropolitan Trial Courts/Municipal Trial Courts

III. Civil Procedure

1. Meaning of ordinary civil actions

2. Meaning of special civil actions

3. Civil actions versus special proceedings

4. Personal actions and real actions

5. Local and transitory actions

6. Actions in rem, in personam and quasi in rem

1. Meaning of cause of action

2. Right of action versus cause of action

3. Failure to state a cause of action

4. Test of the sufficiency of a cause of action

5. Splitting a single cause of action and its effects

6. Joinder and mis-joinder of causes of action

C. Parties to civil actions

1. Real parties-in-interest; indispensable parties; representatives as

2. Compulsory and Permissive Joinder of parties

3. Misjoinder and Non-joinder of parties

5. Effect of death of party-litigant

1. Venue versus jurisdiction

2. Venue of real actions

3. Venue of personal actions

4. Venue of actions against non-residents

5. When the rules on venue do not apply

b. Answer (Negative defenses, Negative pregnant,

c. Counterclaims (Compulsory counterclaim, Permissive counterclaim,

e. Third (fourth, etc.) party complaints

b. Signature and address

c. Verification and certification against forum shopping

d. Effect of the signature of counsel in a pleading

a. Manner of making allegations

ii. Fraud, mistake, malice, intent, knowledge and other condition

c. Specific denials (Effect of failure to make specific denials, When a

5. Effect of failure to plead

a. Failure to plead defenses and objections

b. Failure to plead a compulsory counterclaim and cross-claim

a. When a declaration of default is proper

b. Effect of an order of default, Effect of a partial default

c. Relief from an order of default, Extent of relief

d. Actions where default is not allowed

7. Filing and service of pleadings

a. Modes of service (Personal service, Service by mail,

a. Amendment as a matter of right

b. Amendments by leave of court

d. Amendments to conform to or authorize presentation of evidence

e. Effect of amended pleading

1. Nature and purpose of summons in relation to actions in personam,

5. Extra-territorial service, when allowed